UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


W      ■!' 


'*'W«<1» 


j^iatoda  piadtortttn  Coronae. 


THE    HISTORY 


OF    THE 


PLEAS   OF   THE   CEOA¥N 


BY 


Bit  Mati\)m  §ak,  lint. 

SOME  TIME  LORD  CHIEF  JUSTICE   OF  THE  COURT  OF  KING's  BEXCH. 


riRST  PUBLISHED    FROM   HIS   LORDSHIP'S    ORIGINAL    MANUSCRIPT,  AND    THE   SEVERAL    REFER- 
ENCES  TO    THE    RECORDS    EXAMINED   BY   THE    ORIGINALS,    WITH    NOTES    BY 

S  O  L  L  O  M     E  M  L  Y  N 

OF  LINCOLN'S  INN,  ESQ. 

WITH  A  TABLE  OF  THE  PRINCIPAL  MATTERS. 


Jirst  :^merican  (Kbition. 

WITH    NOTES    AND    REFERENCES    TO   LATER    CASES 
BY 

W.  A.  STOKES  AND  E.  INGERSOLL 

OF   THE    PHILADELPHIA    BAR. 


^  IN  TWO  VOLUMES 

VOL.  I. 

|]i)ilab'Clpl)ia: 
ROBERT  H.  SMALL  25  MINOR  STREET. 

1847. 


Y.1 

r 


Entered  according  to  act  of  Congress  in  the  year  1847,  by 

ROBERT  H.  SMALL, 

In  the  office  of  the  Clerk  of  the  District  Court  of  the  Eastern  District  of 

Pennsylvania. 


^ 
M 


Ui 


r4 


''j.M 


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O 
(1. 


TO 


HENEY  J.  WILLIAMS 


THIS    EDITION    OP 


ft 


HALE'S  HISTORY  OF  THE  PLEAS  OF  THE  CROWN 


IS 


RESPECTFULLY  INSCRIBED. 


28Cf)S0 


EXTRACT  FROM  THE  JOURNAL  OF  THE  HOUSE  OF  COMMONS. 

LUN^  29°  DIE  NOVEMB.  1680. 

Ordered,  That  the  executors  of  Sir  Matthew  Hale,  late  Lord 
Chief  Justice  of  the  court  of  King's  Bench  be  desired  to  print  the 
MSS.  relating  to  the  crown  law  and  that  a  committee  be  appointed 
to  take  care  in  the  printing  thereof;  and  it  is  referred  to 

Sir  Will.  Jones,  Mr.  Sacheverel, 

Serj.  Maynard,  Mr.  Geo.  Pelham, 

Sir  Fra.  Winnington,       Mr.  Paul  Foley. 


R.  EMLYN'S  PREFACE 

(to  the  original  edition.) 


The  following  treatise  being  the  genuine  offspring  of  that 
truly  learned  and  worthy  judge  Sir  Matthew  Hak,{a)  stands 
in  need  of  no  other  recommendation,  than  what  that  great 
and  good  name  will  always  carry  along  with  it. 

Whoever  is  in  the  least  acquainted  with  the  extensive 
learning,  the  solid  judgment,  the  indefatigable  labours,  and 
above  all  the  unshaken  integrity  of  the  author,  cannot  but 
highly  esteem  whatever  comes  from  so  valuable  an  hand. 

Being  brought  up  to  the  profession  of  the  law,  he  soon 
grew  eminent  in  it,  discharging  his  duty  therein  with  great 
courage  and  faithfulness;  and  tho  he  lived  in  critical  times, 
when  disputes  ran  so  high  between  king  and  parliament^  as 
at  last  broke  out  into  a  civil  war,  yet  he  engaged  in  no 
party,  but  carried  himself  with  such  moderation  and  even- 
ness of  temper,  as  made  him  loved  and  courted  by  all. 

It  was  this  great  and  universal  esteem  he  was  then  in, 
that  made  Cromwel  so  desirous  to  have  him  for  one  of  his 
judges;  which  offer  he  would  willingly  have  declined. 
Being  prest  by  Cromwel  to  give  his  reason,  he  at  last 
plainly  told  him,  that  he  was  not  satisfied  with  the  lawful- 
ness of  his  authority,  and  therefore  scrupled  the  accepting 

(a)  He  was  born  at  Alderley,  in  Gloucestershire,  Nov.  1,  1609. 
Was  entered  at  Magdalen- Hall,  in  Oxford,  in  the  17th  year  of  his  age. 
Admitted  oi"  Lincoln' s-Inn,  Nov.  8,  1629, 
»      Made  a  judge  of  the  court  of  Common  Pleas,  1653. 

Lord  Chief  Baron  of  the  Court  of  Exchequer,  Nov.  7,  1660. 
And  at  last  Lord  Chief  Justice  of  the  court  of  King's  Bench,  May  18, 
1671. 

Which  place  he  resigned  Feb.  20,  1675-6. 

And  died  the  Christmas  following,  Dec.  25,  1676. 


vi  MR.  EMLYN'S 

any  commission  under  it;  to  which  Cromwel  rephed,  that 
since  he  had  got  the  possession  of  the  government,  he  was 
resolved  to  keep  it,  and  would  not  be  argued  out  of  it ;  that 
however  it  was  his  desire  to  rule  according  to  the  laws  of 
the  land,  for  which  purpose  he  had  pitched  upon  him  as 
a  person  proper  to  hQ  employed  in  the  administration  of 
justice;  yet  if  they  would  not  permit  him  to  govern  by  red 
gowns,  he  was  resolved  to  govern  by  red  coats. 

Upon  t*his  consideration,  as  also  of  the  necessity  there  at 
all  times  is,  that  justice  and  property  should  be  preserved, 
he  was  prevailed  with  to  accept  of  a  judge's  place  in  the 
court  of  common-pleas,  wherein  he  behaved  with  great 
impartiality,  constantly  avoiding  the  being  concerned  in 
any  state-affairs ;  and  tho  for  the  first  two  or  three  circuits 
he  sat  indifferently  on  the  plea-side,  or  the  crown-side,  yet 
afterwards  he  absolutely  refused  to  sit  on  the  crown-side, 
thinking  it  the  safer  course  in  so  dubious  a  case. 

But  notwitstanding  his  dislike  to  CromweVs  government, 
yet  this  did  not  drive  him,  as  it  did  some  others,  into  the 
extremes  of  the  contrary  party;  for  upon  the  restoration,  of 
which  he  was  no  inconsiderable  promoter,  he  was  not  for 
making  a  surrender  of  all,  and  receiving  the  king  without 
any  restrictions;  on  the  contrary,  he  thought  this  an  oppor- 
tunity not  to  be  lost  for  limiting  the  prerogative,  and  cutting 
off  some  useless  branches,  that  served  only  as  instruments 
of  oppression;  for  which  purpose  he  moved,  as  bishop  Bur- 
net relates,(Z>)  "That  a  committee  might  be  appointed  to 
look  into  the  propositions  that  had  been  made,  and  the  con- 
cessions that  had  been  offered  by  the  late  king,  and  from 
thence  to  digest  such  propositions,  as  they  should  think  fit 
to  be  sent  over  to  the  king." 

This  motion  was  seconded,  and  tho  through  general 
Monk's  means  it  failed  of  success,  yet  it  shewed  our  author's 
tender  regard  for  the  liberties  of  the  subject,  and  that  he  was 
far  from  being  of  a  mind  with  those,  who  looked  on  every 
branch  of  the  prerogative  ^■s,jure  divino  and  indefeasible. 

But  notwithstanding  this  attempt,  which  shewed  he  was 
not  cut  out  for  such  compliances  as  usually  render  a  man 
acceptable  to  a  court,  yet  such  was  his  unblemished  charac- . 
ter,  that  it  was  thought  an  honour  to  his  majesty's  govern- 
ment to  advance  him  first  to  the  station  of  Lord  Chief 

{h)  Burnet's  Hist,  of  own. Times,  Vol.  I.  p.  88. 


PREFACE.  vii 

Baron,  and  afterwards  to  that  of  Lord  Chief  Justice  of  the 
king's  bench;  nor  indeed  could  so  great  a  trust  be  lodged 
in  better  hands. 

When  he  was  first  promoted,  the  Lord  Chancellor  Cla- 
rendon,  upon  delivering  to  him  his  commission,  told  him, 
among  other  things,  "  That  if  the  king  could  have  found  out 
an  honester  or  fitter  man  for  that  employment,  he  had  not 
advanced  him  to  it,  and  that  he  had  therefore  preferred  him, 
because  he  knew  none  that  deserved  so  well. "(c) 

He  behaved  in  each  of  these  places  with  such  uncorrupt 
integrity,  such  impartial  justice,  such  diligence,  candor,  and 
affability,  as  justly  drew  the  chief  practice  after  him,  whith- 
ersoever he  went;  he  constantly  shunned  not  only  the  being 
corrupt,  but  every  thing  w^hich  had  any  appearance,  or 
might  afford  the  least  suspicion  of  it ;  he  was  sincerely  bent 
on  discovering  the  truth  and  merits  of  a  cause,  and  w^ould 
therefore  bear  with  the  meanest  counsel,  supply  the  defects 
of  the  pleader,  and  never  take  it  amiss,  when  summino-  up 
the  evidence  to  be  reminded  of  any  circumstance  he  had 
omitted ;  for  being  in  a  high  degree  possessed  of  that  qualifi- 
cation so  peculiarly  necessary  to  a  judge,  I  mean  patience 
(without  which  the  most  excellent  talents  may  become  insicr- 
nificant)  no  considerations  of  his  own  convenience  could 
prevail  with  him  to  hurry  over  a  cause,  or  dispatch  it  with- 
out a  thorough  examination ;  for  wdiich  reason  he  made  it  a 
rule,  especially  upon  the  circuits,  to  be  short  and  sparing  at 
meals,  that  he  might  not  either  by  a  full  stomach  unfit  him- 
self for  the  due  discharge  of  his  office,  or  by  a  profuse  w-aste 
of  time,  be  obliged  to  put  off",  or  precipitate  the  business  that 
came  before  him.[l] 

(c)  Burnet's  life  oi:  Hale,  Edit.  1682.  p.  53. 


[1]  Lord  Hale  wrote  the  following  rules  for  his  judicial  guidance: 

Things  necessary  to  be  continually  had  in  remembrance. 

I.  That  in  the  administration  of  justice  I  am  entrusted  for  God,  the  kinn^ 
and  country  ;  and  therefore, 

IT.  That  it  be  done,  1st,  uprightly;  2dly,  deliberately;  3dly,  resolutely. 

III.  That  I  rest  not  upon  my  own  understanding  or  strength,  but  implore 
and  rest  upon  the  direction  and  strength  of  God. 

n  .  That  in  the  execution  of  justice  I  carefully  lay  aside  my  own  passions, 
and  do  not  give  way  to  them,  however  provoked. 

V.  That  I  be  wholly  intent  upon  the  business  I  am  about,  remitting  all 
Other  cares  and  thoughts  as  unseasonable,  and  interruptions. 


viii  MR.  EMLYN'S 

He  was  a  great  lamenter  of  the  divisions  and  animosities 
which  raged  so  fiercely  at  that  time  among  us,  especially 
about  the  smaller  matters  of  external  ceremonies,  which  he 
feared  might  in  the  end  subvert  the  fundamentals  of  all  reli- 
gion: and  tho  he  thought  the  principles  of  the  non-conform- 
ists too  narrow  and  strait-laced,  yet  he  could  by  no  means 
approve  the  penal  laws  which  were  then  made  against  them ; 
he  knew  many  of  them  to  be  sober,  peaceable  men,  who 
were  well  affected  to  the  government,  and  had  shewn  as 
much  dislike  as  any  to  the  late  usurpation,  and  therefore  he 
thought  they  deserved  a  better  treatment ;  besides,  he  looked 
on  it  as  an  infringement  on  the  rights  of  conscience,  which 
ought  always  to  be  held  sacred  and  inviolable,  and  therefore 
used  to  say,  that  the  only  way  to  heal  our  breaches  was 
a  new  act  of  uniformity;  for  which  purpose  he  concurred 
with  Lord  Keeper  Bridgman  and  Bishop  Wilkins,  in  setting 
on  foot  a  scheme  for  the  comprehension  of  the  more  mode- 
rate dissenters,  and  an  indulgence  towards  others,  and  drew 
the  same  up  into  the  form  of  a  bill,  altho  by  a  vote  of  the 
house  of  commons  it  was  prevented  from  being  laid  before 
the  parliament. 

VI.  That  I  suffer  not  myself  to  be  prepossessed  with  any  judgment  at  all, 
till  the  whole  business,  and  both  parties  be  heard. 

VII.  That  I  never  engage  myself  in  the  beginning  of  a  cause,  but  reserve 
myself  unprejudiced  till  the  whole  be  heard. 

VIII.  That  in  business  capital,  though  my  nature  prompt  me  to  pity,  yet 
to  consider  that  there  is  also  a  pity  due  to  the  country. 

IX.  That  I  be  not  too  rigid  in  matters  purely  conscientious,  where  all  the 
harm  is  diversity  of  judgment. 

X.  That  I  be  not  biassed  with  compassion  to  the  poor  or  favor  to  the  rich, 
in  point  of  justice. 

XI.  That  popular  or  court  applause,  or  distaste,  have  no  influence  upon 
any  thing  I  do  in  point  of  distribution  of  justice. 

XII.  Not  to  be  solicitous  what  men  will  say  or  think,  so  long  as  I  keep 
myself  exactly  according  to  the  rules  of  justice. 

XIII.  If  in  criminals  it  be  a  measuring  cast,  to  incline  to  mercy  and 
acquittal. 

XIV.  In  criminals  that  consist  merely  in  words  when  no  more  harm 
ensues,  moderation  is  no  injustice. 

XV.  In  criminals  of  blood,  if  the  fact  be  evident,  severity  is  justice. 

XVI.  To  abhor  all  private  solicitations,  of  what  kind  soever,  and  by 
whomsoever,  in  matters  depending. 

XVII.  To  charge  my  servants;  1st,  not  to  interpose  in  any  business 
whatsoever;  2d,  not  to  take  more  than  their  known  fees;  3d,  not  to  give 
any  undue  precedence  to  causes ;  4th,  not  to  recommend  counsel. 

XVIII.  To  be  short  and  sparing  at  meals,  that  I  may  be  fitter  for 
business. 


PREFACE.  ix 

Tho  by  this  means  he  was  hindered  from  obtaining  a  re- 
peal of  those  laws,  yet  could  he  never  be  brought  to  give  any 
countenance  to  the  execution  of  them,  I  have  heard  it  cre- 
dibly related,  that  once  when  he  was  upon  the  circuit,  there 
happened  to  be  a  grand  jury,  who  thought  to  make  a  merit 
of  presenting  a  worthy  peaceable  non-conformist,  that  lived 
in  their  neighbourhood ;  upon  this  occasion  our  judge  could 
not  avoid  reprimanding  them  for  their  ill-placed  zeal,  which 
vented  itself  this  way,  while  no  notice  was  taken  of  the 
prophaneness,  drunkenness  and  other  immoralities,  which 
abounded  daily  amongst  them ;  in  short,  he  told  them,  that 
if  they  were  resolved  to  persist,  he  would  remove  the  affair 
to  Westminster- Hail,  and  if  he  could  not  then  prevail  to  have 
a  stop  put  to  it,  he  would  resign  his  place ;  for  he  had  told 
the  king,  when  he  first  accepted  it,  that  if  any  thing 'w^as 
pressed  upon  him,  which  was  against  his  judgment,  he 
would  quit  his  post. 

He  always  retained  a  serious  impression  of  religion,  and 
in  particular  was  a  punctual  observer  of  any  vow  or  engage- 
ment he  had  laid  himself  under.  Having  in  his  younger 
days  on  a  particular  occasion  made  a  vow  never  to  drink  an 
health  again,  he  could  never  be  prevailed  on  upon  any  con- 
sideration to  dispense  with  it,  altho  drinking  healths  was 
then  grown  to  be  the  fashionable  loyalty  of  the  times. 

And  thus  in  every  character  of  life  he  was  a  pattern  well 
worthy  of  imitation :  in  short,  he  was  a  public  blessing  to  the 
age  he  lived  in,  and  not  to  that  only,  but  by  his  bright  and 
amiable  example  to  succeeding  generations;  for  as  a  pattern 
of  virtue  and  goodness  will  always  be  a  silent,  tho  sharp 
reproof  to  those  who  deviate  from  it,  so  to  noble  and  generous 
minds  it  will  not  fail  of  being  a  mighty  spur  and  incentive 
to  the  imitation  of  it,  and  by  that  means  leave  a  real  and 
lasting,  tho  secret,  influence,  behind  it. 

As  he  justly  merited  the  esteem  of  all,  so  in  particular  he 
has  well  deserved  of  the  profession  of  the  law,  to  which  he 
was  so  shining  an  ornament;  he  contributed  more  by  his 
example  to  the  removal  of  the  vulf^r  prejudices  against 
them,  than  any  argument  whatever  could  do. 

The  great  Archbishop  Usher  had  entertained  >some  preju- 
dices of  th-at  kind,  but  by  conversation  with  our  author  and 
the  learned  Selde?i,  he  was  convinced  of  his  mistake;  our 
author  declaring,  "  That  by  his  acquaintance  with  them,  he 
believed  there  was  as  many  honest  men  among  the  lawyers 


X  MR.  EMLYN'S 

proportion  ably,  as  among  any  profession  of  men  in  E7ig' 
landy 

Never  was  the  old  monkish  maxim,  Bonus  Jurista  malus 
Christa,  more  thoroughly  confuted,  than  by  his  example. 
He  demonstrated  by  a  living  argument,  how  practicable  it 
was  to  be  both  an  able  lawyer  and  a  good  christian;  indeed 
he  saw  nothing  in  the  one  that  was  any  way  incompatible 
with  the  other,  nor  did  he  think,  that  an  unaffected  piety  sat 
with  an  ill  grace  on  any,  be  his  station  never  so  high,  or  his 
learning  never  so  great ;  for  tho  he  diligently  applied  him- 
self to  the  business  of  his  profession,  yet  would  he  never 
suffer  it  so  to  engross  his  time  as  to  leave  no  room  for  mat- 
ters of  a  more  serious  concernment,  as  may  appear  from  the 
many  tracts  he  has  wrote  on  moral  and  religious  subjects. 

Fir  this  reason,  when  he  found  the  decays  of  nature  gain- 
ing ground  upon  him,  he  could  no  longer  be  prevailed  with 
to  suspend  the  resolution  he  had  taken  to  resign  his  place; 
that  after  the  example  of  that  great  emperor  Charles  V.  he 
might  have  an  interstice  between  the  business  of  life  and 
the  hour  of  death.((i) 

No  wonder  then  that  one  so  great,  so  good,  should  be 
loved  and  esteemed  while  living,  should  be  revered  and 
admired  when  dead;  no  wonder  the  king  should  be  loth 
to  part  with  him,  who  had  been  such  a  credit  to  his  govern- 
ment; tho  had  he  held  his  place  some  few  years  longer, 
such  a  scene  of  affairs  did  then  open,  as  in  all  likelihood 
would  have  greatly  distressed  him  how  to  behave,  as  well 
as  the  court  how  to  get  rid  of  one,  who  could  not  have  been 
removed  without  great  reproach,  nor  continued  without  great 
obstruction  to  the  violent  measures  that  were  then  pursued. 

But  it  is  time  to  stop,  for  I  mean  not  to  write  the  history 
of  his  life;  this  would  require  a  volume  of  itself,  and  is  long 
ago  performed  by  an  able  hand;(e)  I  shall  therefore  only 
subjoin  his  character,  as  drawn  by  that  learned  prelate,  and 
other  eminent  co temporaries,  by  which  it  will  appear,  that 
future  times  cannot  outgo  his  own  in  the  veneration  and 
esteem  they  bore  him,# 

The  bishop  expresses  it  in  short  thus :  "  That  he  was  one 
of  the  greatest  patterns  this  age  has  afforded,  whether  in  his 
private  deportment  as  a  christian,  or  in  his  public  employ- 

(d)  Inter  vitcB  negotia  <^  mortis  diem  oportere  spatium  intercedere. 
Strada  de  hello  Belgico,  Vol.  I.  sub  anno  1555. 

(e)  Bp.  Burnet. 


PREFACE.  xi 

merits,  either  at  the  bar  or  on  the  bench  ;"(y)  having  given 
it  more  at  large(^)  in  the  words  of  a  noble  person,  whom 
he  styles  one  of  the  greatest  men  of  the  profession  of  the 
law:(/i)  "he  would  never  be  brought  to  discourse  of  pubHc 
matters  in  private  conversation;  but  in  questions  of  law, 
w^ien  any  young  lawyer  put  a  case  to  him,  he  was  very 
communicative,  especially  while  he  was  at  the  bar:  but 
when  he  came  to  the  bench,  he  grew  more  reserved,  and 
would  never  suffer  his  opinion  in  any  case  to  be  known,  till 
he  was  obliged  to  declare  it  judicially;  and  he  concealed  his 
opinion  in  great  cases  so  carefully,  that  the  rest  of  the  judges 
in  the  same  court  could  never  perceive  it:  his  reason  was, 
because  every  judge  ought  to  give  sentence  according  to  his  own 
persuasio7i  and  conscience,  and  not  to  he  swayed  hy  any  respect 
or  deference  to  another  man's  opinion :  and  by  this  means  it 
happened  sometimes,  that  when  all  the  barons  of  the  Ex- 
chequer had  delivered  their  opinions,  and  agreed  in  their 
reasons  and  arguments,  yet  he  coming  to  speak  last,  and 
differing  in  judgment  from  them,  hath  expressed  himself 
with  so  much  weight  and  solidity,  that  the  barons  have 
immediately  retracted  their  votes,  and  concurred  with  him. 
He  hath  sat  as  a  judge  in  all  the  courts  of  law,  and  in, two 
of  them  as  chief;  but  still  wherever  he  sat,  all  business  of 
consequence  followed  him,  and  no  man  was  content  to  sit 
down  by  the  judgment  of  any  court,  till  the  case  was  brought 
before  him,  to  see  whether  he  were  of  the  same  mind;  and 
his  opinion  being  once  known,  men  did  readily  acquiesce 
in  it;  and  it  was  very  rarely  seen,  that  any  man  attempted 
to  bring  it  about  again ;  and  he  thM  did  so,  did  it  upon  great 
disadvantages,  and  was  always  looked  upon  as  a  very  con- 
tentious person;  so  that  what  Cicero  says  of  Brutus,  did 
very  often  happen  to  him,  Etiam  quos  contra  statuit,  cequos 
placatosque  dimisit. 

"  Nor  did  men  reverence  his  judgment  and  opinion  in 
courts  of  law  only;  but  his  authority  was  as  great  in  courts 
of  equity,  and  the  same  respect  and  submission  was  paid 
him  there  too;  and  this  appeared  not  only  in  his  own  court 
of  equity  in  the  Exchequer  chamber,  but  in  the  Chancery 
too,  for  thither  he  was  often  called  to  advise  and  assist  the 
lord  chancellor,  or  lord  keeper  for  the  time  being;  and  if  the 

(/)  P-  218.  {g)  p,  172. 

(/»)  Supposed  to  be  the  then  earl  of  Nottingham. 


xii  MR.  EMLYN'S 

cause  were  of  difficult  examination,  or  intricated  and  en- 
tangled with  variety  of  settlements,  no  msm  ever  shewed  a 
more  clear  and  discerning  judgment;  if  it  were  of  great 
value,  and  great  persons  interested  in  it,  no  man  shewed 
greater  courage  and  integrity  in  laying  aside  all  respect  of 
persons.  When  he  came  to  deliver  his  opinion,  he  always 
put  his  discourse  into  such  a  method,  that  one  part  of  it 
gave  light  to  the  other ;  and  where  the  proceedings  of  Chan- 
cery might  prove  inconvenient  to  the  subject,  he  never 
spared  to  observe  and  reprove  them :  And  from  his  observa- 
tions and  discourses,  the  Chancery  hath  taken  occasion  to 
establish  many  of  those  rules  by  which  it  governs  itself  at 
this  day. 

"  He  did  look  upon  equity  as  a  part  of  the  common  law, 
and  one  of  the  grounds  of  it ;  and  therefore,  as  near  as  he 
could,  he  did  always  reduce  it  to  certain  rules  and  princi- 
ples, that  men  might  study  it  as  a  science,  and  not  think 
the  administration  of  it  had  any  thing  arbitrary  in  it.  Thus 
eminent  was  this  man  in  every  station,  and  into  what  course 
soever  he  was  called,  he  quickly  made  it  appear,  that  he 
deserved  the  chief  seat  there. 

"  As  great  a  lawyer  as  he  was,  he  would  never  suffer  the 
strictness  of  law  to  prevail  against  conscience ;  as  great  a 
chancellor  as  he  was,  he  would  make  use  of  all  the  niceties 
and  subtilties  in  law,  when  it  tended  to  support  right  and 
equity.  But  nothing  was  more  admirable  in  him,  than  his 
patience :  he  did  not  affect  the  reputation  of  quickness  and 
dispatch,  by  a  hasty  and  ,^captious  hearing  of  the  counsel : 
he  would  bear  with  the  meanest,  and  gave  every  man  his  full 
scope,  thinking  it  much  better  to  lose  time  than  patience : 
in  summing  up  of  an  evidence  to  a  jury,  he  would  always 
require  the  bar  to  interrupt  him  if  he  did  mistake,  and  to 
put  him  in  mind  of  it,  if  he  did  forget  the  least  circum- 
stance :  some  judges  have  been  disturbed  at  this  as  a  rude- 
ness, which  he  always  looked  upon  as  a  service  and  respect 
done  to  him. 

"  His  whole  life  was  nothing  else  but  a  continual  course 
of  labour  and  industry,  and  when  he  could  borrow  any  time 
from  the  public  service,  it  was  wholly  employed  either  in 
philosophical  or  divine  meditations:  and  even  that  was  a 
public  service  too,  as  it  hath  proved;  for  they  have  occa- 
sioned his  writing  of  such  treatises  as  are  become  the  choicest 
entertainment  ojf  wise  and  good  men,  and  the  world  hath 


PREFACE.  xiii 

reason  to  wish  that  more  of  them  were  printed.  He  that 
considers  the  active  part  of  his  Ufa,  and  with  what  unwea- 
ried diligence  and  appUcation  of  mind  he  dispatched  all 
mens  business  which  came  under  his  care,  will  wonder  how 
he  could  find  any  time  for  contemplation :  he  that  considers 
again  the  various  studies  he  past  thro,  and  the  many  collec- 
tions and  observations  he  hath  made,  may  as  justly  wonder 
how  he  could  find  any  time  for  action :  but  no  man  can  won- 
der at  the  exemplary  piety  and  innocence  of  such  a  life  so 
spent  as  this  was,  wherein  as  he  was  careful  to  avoid  every 
idle  word,  so  it  was  manifest  he  never  spent  an  idle  day. 
They  who  came  far  short  of  this  great  man,  will  be  apt 
enough  to  think  that  this  is  a  panegyric,  which  indeed  is  a 
history,  and  but  a  little  part  of  that  history  which  was  with 
great  truth  to  be  related  of  him.  Men  who  despair  of  attain- 
ing such  perfection,  are  not  willing  to  believe  that  any  man. 
else  did  ever  arrive  at  such  a  height. 

"  He  was  the  greatest  lawyer  of  the  age,  and  might  have 
had  what  practice  he  pleased ;  but  tho  he  did  most  conscien- 
tiously affect  the  labours  of  his  profession,  yet  at  the  same 
time  he  despised  the  gain  of  it ;  and  of  those  profits  which 
he  would  allow  himself  to  receive,  he  always  set  apart  a 
tenth  penny  for  the  poor,  which  he  ever  dispensed  with  that 
secresy,  that  they  who  were  relieved,  seldom  or  never  knew 
their  benefactor.  He  took  more  pains  to  avoid  the  honours 
and  preferments  of  the  gown,  than  others  do  to  compass 
them.  His  modesty  was  beyond  all  example;  for  where 
some  men  who  never  attained  to  half  his  knowledge,  have 
been  puffed  up  with  a  high  conceit  of  themselves,  and  have 
affected  all  occasions  of  raising  their  own  esteem-  by  depre- 
ciating other  men,  he  on  the  contrary  was  the  most  obliging 
man  that  ever  practised.  If  a  young  gentleman  happened  to 
be  retained  to  argue  a  point  in  law,  where  he  was  on  the 
contrary  side,  he  would  very  often  mend  the  objections  when 
he  came  to  repeat  them,  and  always  commend  the  gentle- 
man, if  there  were  room  for  it ;  and  one  good  word  of  his  was 
of  more  advantage  to  a  young  man,  than  all  the  favour  of 
the  court  could  be. [2] 

[2]  Williams,  in  his  life  of  Hale,  gives  the  following  account  of  his  intro- 
duction to  a  student  of  law,  taken  from  a  manuscript  formerly  in  the  posses- 
sion of  Bennet  Langton,  the  friend  of  Dr.  Johnson,  and  found  in  the  hand- 
writing of  Mr.  Langton's  great  grandfather,  who  studied  law  with  Lord  Hale  : 

"  Dec.  13,  1672. — I  was  sent  to  by  Mr.  Barker,  to  come  to  him  to  my 
Lord  Chief  Justice  Hale's  lodgings,  at  Sergeant's  Inn.     I  was  informed  by 


xiv  MR.  EMLYN'S 

Upon  the  promotion  of  lord  chief  i\is,iice  Rainsford,  who 
sncceeded  him  in  that  office,  the  then  lord  chancellor  exprest 
himself  thus  :{i)     "  The  vacancy  of  the  seat  of  the  chief  jus- 

(i)  Burnet,  p.  213,  217. 


Mr.  Godolphin,  about  a  month  ago,  that  my  Lord  Chief  Justice  had  decljared, 
at  supper,  at  Mr.  Justice  Twisden's,  that  if  he  could  meet  with  a  sober  young 
man,  that  would  entirely  addict  himself  to  his  lordship's  directions,  he  would 
take  delight  to  communicate  to  him,  and  discourse  with  him  at  meals,  and 
at  leisure  times ;  and,  in  three  year's  time,  make  him  perfect  in  the  practice 
of  the  law.  I  discoursed  several  times  with  Mr.  Godolphin,  of  the  great  advan- 
tage that  a  student  would  make  by  his  lordship's  learned  communications,  and 
what  influence  it  would  have  on  a  practiser,  as  well  as  honour,  to  be  regarded 
as  my  lord's  friend  ;  and  persuaded  him  to  use  his  interest,  and  the  offers  of 
his  friends,  to  procure  his  lordship's  favour.  But  his  inclinations  leading 
him  to  travel,  and  his  design  afterwards,  to  rely  upon  his  interest  at  court, 
he  had  no  thoughts  to  pursue  it,  but  offered  to  engage  friends  on  my  behalf, 
which  I  refused,  and  told  him,  I  would  make  use  of  no  other  person  than  my 
worthy  friend,  Mr.  Barker,  whose  acquaintance  with  my  lord,  I  knew,  was 
very  particular.  After  I  had  often  reflected  upon  the  nobleness  of  my  lord's 
proposition,  and  the  happiness  of  that  person  that  should  be  preferred  by  so 
learned  and  pious  a  man,  to  whose  opinion  every  court  paid  such  a  venera- 
tion that  he  was  regarded  as  the  oracle  of  the  law,  I  made  my  application  to 
Mr.  Barker  to  intercede  with  my  lord  in  my  behalf,  who  assented  to  it  with 
much  readiness,  as  he  always  had  been  very  obliging  to  me  since  I  had  the 
honour  to  be  known  to  him.  He  made  a  visit  to  my  lord,  and  told  him  that 
he  heard  of  the  declaration  my  lord  made  at  Mr.  Justice  Twisden's.  My 
lord  said  it  was  true,  and  he  had  entertained  the  same  resolution  a  long 
time;  but,  not  having  met  with  any  body  to  his  purpose^  he  had  discarded 
those  thoughts,  which  Mr.  B.  did  beg  of  his  lordship  to  resume,  in  behalf  of 
a  person  that  he  would  recommend  to  him,  and  would  be  surety  for  his 
industry,  and  diligent  observation  of  his  lordship's  directions.  My  lord  then 
inquired  who  it  was,  and  he  mentioned  me.  Then  he  asked  how  long  I  had 
been  at  the  law,  of  what  country  I  was,  and  what  estate  I  had  ;  which  he 
told  him,  and  that  I  was  my  father's  eldest  son.  To  which  he  replied,  that 
he  might  talk  no  farther  of  it,  for  there  was  no  likelihood  that  I  would  attend 
to  the  study  of  the  law  as  I  ought.  But  Mr.  B.  gave  him  assurances  that  I 
would  ;  that  his  lordship  might  rely  upon  his  word  ;  and  that  I  had  not  taken 
this  resolution  without  deliberation ;  that  I  had  often  been  at  Westminster 
Hall,  where  I  had  heard  his  lordship  speak,  and  had  a  very  great  veneration 
for  his  lordship,  and  did  earnestly  desire  this  favour;  that  my  father  had 
lately  purchased  the  seat  of  the  family,  which  was  sold  by  the  elder  house, 
and  by  that  means  had  run  himself  into  five  or  six  thousand  pounds  debt. 

"  '  Well  then,'  said  my  lord,  '  pray  bring  him  to  me.' 

"  Dec.  13. — I  went  to  my  lord  and  Mr.  B.  (for  till  that  time  my  lord  was 
either  busy  or  out  of  town)  about  four  in  the  afternoon.  My  lord  prayed  us 
to  sit,  and  after  some  silence,  Mr.  B.  acquainted  my  lord,  that  I  was  the  per- 
son on  whose  behalf  he  had  spoken  to  his  lordship.  My  lord  then  said,  that 
he  understood  I  had  a  fortune,  and,  therefore,  would  not  so  strictly  engage 
myself  in  the  crabbed  study  of  the  law,  as  was  necessary  for  one  that  must 


PREFACE.  XV 

tice  of  this  court,  and  that  by  a  way  and  means  so  unusual, 
as  the  resignation  of  him,  that  lately  held  it,  and  this  too 
proceeding  from  so  deplorable  a  cause  as  the  infirmity  of 
that  body,  which  began  to  forsake  the  ablest  mind  that  ever 


make  his  dependence  on  it.  I  told  his  lordship,  that  if  he  pleased  to  admit 
me  to  that  favor  I  heard  he  designed  to  such  a  person  he  had  inquired  after, 
that  I  should  be  very  studious.  My  lord  replied  quick,  that  Mr.  B.  had  given 
him  assurances  of  it ;  that  Mr.  B.  was  his  worthy  friend,  with  whom  he  had 
been  acquainted  a  long  time,  and  that,  for  his  sake,  he  should  be  ready  to  do 
me  any  kindness;  for  which  I  humbly  gave  his  lordship  thanks,  as  did,  like- 
wise, Mr.  B.  My  lord  asked  me,  how  I  had  passed  my  time,  and  what 
standing  I  was  of.  I  told  him  that  I  was  almost  six  years  of  the  Temple  ; 
that  I  had  travelled  into  France  about  two  years  ago,  since  when  I  had  dis- 
continued my  studies  of  the  law,  applying  myself  to  the  reading  French 
books,  and  some  histories.  My  lord  discoursed  of  the  necessity  of  a  firm, 
uninterrupted  prosecution  of  that  study  which  any  man  designed,  in  the 
midst  of  which  Mr,  Justice  Twisden  came  in,  so  that  his  lordship  bid  us  come 
to  him  again  in  two  hours  after. 

"  About  eight  the  same  evening,  we  found  his  lordship  alone.  After  we 
sat  down,  my  lord  bid  me  tell  him,  what  I  read  in  Oxford,  what  here,  and 
what  in  France.  I  told  him  I  read  Smith's  Logic,  Burgersdicius'  Natural 
Philosophy,  Metaphysics,  and  Moral  Philosophy ;  that  in  the  afternoons  I 
used  to  read  the  classic  authors ;  that,  at  my  first  coming  to  the  inns  of 
court,  I  read  Lyttleton,  and  Doctor  and  Student,  Perkins,  my  Lord  Coke's 
Institutes,  and  some  cases  in  his  Reports;  that  after  I  went  into  France,  I 
applied  myself  to  the  learning  of  the  language,  and  reading  some  French 
memoirs,  as  the  Life  of  Mazarin,  Memoirs  of  the  D.  of  Guise,  the  Hii^- 
tory  of  the  Academic  Francoise,  and  others;  that  since  I  came  away,  I  con- 
tinued to  read  some  French  books,  as  the  History  of  the  Turkish  government 

by ,  the  account  of  the  last  Dutch  war,  the  State  of  Holland,  &c. ; 

that  [read  a  great  deal  in  Heylin's  Geography,  some  of  Sir  Walter  Rawleigh, 
my  Lord  Bacon  of  the  Advancement  of  Learning,  Tully's  Offices,  Rush- 
worth's  Collections. 

"  My  lord  said,  that  the  study  of  the  law  was  to  one  of  two  ends ;  first,  to 
fit  a  man  with  so  much  knowledge  as  will  enable  him  to  understand  his  own 
estate,  and  live  in  some  repute  among  his  neighbours  in  the  country ;  or 
secondly,  to  design  the  practice  of  it  as  an  employment  to  be  advantaged  by 
it ;  and  asked  which  of  them  was  my  purpose.  I  acquainted  his  lordship, 
that  when  I  first  came  to  the  temple  I  did  not  design  to  prosecute  the  study 
of  the  law,  so  as  to  make  advantage  by  it ;  but  now,  by  the  advice  of  my 
father  and  my  uncle,  and  Dr.  Peirse,  in  whose  college  I  had  my  education, 
and  received  many  instances  of  his  great  kindness  to  me,  I  had  formed  reso- 
lutions to  practise  it,  and,  therefore,  made  my  suit  to  his  lordship,  for  his 
directions. 

'* '  Well,'  said  my  Lord,  *  since  I  see  your  intentions,  I  will  give  what 
assistance  I  can.' 

"  My  lord  said,  that  there  were  two  ways  of  applying  one's-self  to  the 
study  of  the  law ;  one  was  to  attain  the  great  learning  and  knowledge  of  it, 
which  was  to  be  had  in  all  the  old  books,  but  that  did  require  great  time,  and 


xvi  MR.  EMLYN'S 

presided  here,  hath  filled  the  kingdom  with  lamentations, 
and  given  the  king  many  and  pensive  thoughts  how  to  sup- 
ply that  vacancy  again."  And  then  addressing  himself  to 
his   successor:    "The  very  labours   of  the  place,  and  that 


would  be  at  least  seven  years  before  a  man  would  be  fit  to  make  any  benefit 
by  it ;  the  other  was,  by  fitting  one's-self  for  the  practice  of  the  court,  by 
reading  the  new  reports,  and  the  present  constitution  of  the  law ;  and,  to  this 
latter  my  lord  advised  me,  having  already  passed  so  much  time,  a  great 
many  of  the  cases  seldom  coming  in  practice,  and  several  of  them  anti- 
quated. 

"  In  order  tp  which  study,  his  lordship  did  direct  -that  I  should  be  very 
exact  in  Lyttleton,  and  after,  read  carefully  my  lord  Coke's  Lyttleton,  and 
then  his  Reports.  After  which  Plowden,  Dyer,  Croke  and  Moore.  That  I 
should  keep  constantly  to  the  exercises  of  the  house,  and,  in  term,  to  West- 
minster Hall,  to  the  King's  Bench,  because  the  young  lawyers  began  their 
practice  there ;  that  I  should  associate  with  studious  persons,  rather  above, 
than  below  my  standing ;  and,  after  next  term,  get  me  a  common  place 
book,  and  that  I  must  spoil  one  book,  binding  Rolle's  Abr.  with  white  paper 
between  the  leaves,  and  according  to  those  titles  insert  what  I  did  not  find 
there  before,  according  to  the  preface  to  that  book,  which  my  lord  said  came 
from  his  hands,  and  that  he  did  obtain  of  Sir  Francis  RoUe  to  suffer  it  to  be 
printed,  to  be  a  platform  to  the  young  students.  My  lord  said  that  he  would, 
at  any  time  that  I  should  come  to  him,  shew  me  the  method  he  used,  and 
direct  me,  and  that  if  he  were  busy  he  would  (ell  me  so. 

"He  said  that  he  studied  sixteen  hours  a  day,  for  the  first  two  years  that 
he  came  to  the  inns  of  court,  but  almost  brought  himself  to  his  grave,  though 
he  were  of  a  very  strong  constitution,  and  afterwards  reduced  himself  to 
eight  hours;  but  that  he  would  not  advise  anybody  to  so  much  ;  that  he 
thought  six  hours  a  day,  with  attention  and  constancy,  was  sufficient ;  that 
a  man  must  use  his  body  as  he  would  use  his  horse,  and  his  stomach — not 
tire  him  at  once,  but  rise  with  an  appetite.  That  his  father  did  order  in  his 
will  that  he  should  follow  the  law;  that  he  came  from  the  university  with 
some  aversion  for  lawyers,  and  thought  them  a  barbarous  sort  of  people, 
unfit  for  any  thing  but  their  own  trade;  but  having  occasion  to  speak  about 
business  with  Serjeant  Glanvil,  he  found  him  of  such  prudence  and  candour, 
that  from  that  time  he  altered  his  apprehensions,  and  betook  himself  to  the 
study  of  the  law,  and  oft  told  Serjeant  Glanvil  that  he  was  the  cause  of  his 
application  to  the  law. 

"  That  constantly,  after  meals,  every  one  in  his  turn,  proposed  a  case, 
in  which  every  one  argued. 

"  That  he  took  up  a  resolution,  which  he  punctually  observed  ever  since, 
that  he  would  never  more  see  a  play,  having  spent  all  his  money  at  Oxford, 
and  having  experienced  that  it  was  so  great  an  alienation  of  his  mind  from 
his  studies,  by  the  recurring  of  the  speeches  and  actions  into  his  thoughts,  a^ 
well  as  the  loss  of  his  time  when  he  saw  them;  that  he  had  often  had  dis- 
putes with  Mr.  Selden,  who  was  his  great  friend,  and  used  to  say  he  found  so 
great  refreshment  by  it;  but  my  lord  told  him,  he  had  so  much  knowledge 
of  the  inconvenience  of  them,  that  he  would  not  see  one  for  a  hundred 
pounds.     But  he  said  he  was  not  one  of  Mr.  Prynne's  judgment  (which  I 


PREFACE.  xvii 

weight  and  fatigue  of  business,  wliicli  attends  it,  are  no 
small  discouragements;  for  what  shoulders  may  not  justly 
fear  that  burden,  which  made*  him  stoop,  that  went  before 
you?  Yet  I  confess  you  have  a  greater  discouragement 
than  the  mere  burden  of  your  place,  and  that  is  the  unimi- 
table  example  of  your  predecessor.  Onerosum  est  succedere 
bono  principi  vfdi^  the  saying  of  him  in  the  panegyric,  and 
you  will  find  it  so  too,  that  are  to  succeed  such  a  chief  jus- 
tice, of  so  indefatigable  an  industry,  so  invincible  a  patience, 
so  exemplary  an  integrity,  and  so  magnanimous  a  contempt 
of  worldly  things,  without  which  no  man  can  be  truly  great; 

minded  him  of,)  for  he  did  not  think  it  unlawful,  but  very  fit  for  gentlemen 
sometimes,  but  not  for  students. 

"  My  lord  said,  at  the  beginning  of  his  discourse,  that  my  friends  might 
expect  that  I  should  marry,  to  take  off  the  present  debt  from  the  estate, 
which  else  would  increase,  and  then  there  could  be  no  thoughts  of  a  very 
earnest  prosecution  of  study ;  to  which  Mr.  B.  said,  that  my  father,  when 
he  made  this  purchase  that  put  him  into  debt,  did  resolve  to  sell  other  land, 
and  by  that  might  either  discharge,  or  lessen  it. 

"  My  lord  said  that  his  rule  of  health  was,  to  be  temperate,  and  keep  him- 
self warm.  He  never  made  breakfasts,  but  used,  in  the  morning,  to  drink  a 
glass  of  some  sort  of  ale.  That  he  went  to  bed  at  nine,  and  rose  between 
six  and  seven,  allowing  himself  a  good  refreshment  for  sleep.  That  the  law 
will  admit  of  no  rival,  nothing  to  go  even  with  it ;  but  that  sometimes  one 
may,  for  diversion,  read  in  the  Latin  historians  of  England,  Hoveden,  and 
Matthew  Paris,  &:c. ;  but  after  it  is  conquered,  it. will  admit  of  other  studies. 

"  1  asked  whether  his  lordship  read  the  same  law  in  the  afternoon,  as  he 
did  in  the  morning.  He  said  no  :  he  read  the  old  books  in  the  morning,  and 
the  new  in  the  afternoon,  because  of  fitting  himself  for  conversation.  I  asked 
if  he  kept  constantly  to  one  court,  which  he  said  he  did. 

"  He  said,  a  little  law,  a  good  tongue,  and  a  good  memory,  would  fit  a 
man  for  the  chancery ;  and  he  said  it  was  a  golden  practice,  for  the  lawyers 
there  got  more  money  than  in  all  the  other  courts  of  Westminster  Hall.  I 
told  his  lordship  what  my  lord  chancellor  lately  said,  that  he  would  reduce 
the  practice  of  the  court  to  another  method,  and  not  suffer  above  one  counsel, 
or  two  at  the  most,  in  one  cause. 

"  My  lord  said,  that  lOOOZ.  a  year  was  a  great  deal  for  any  common  law- 
yer to  get ;  and  Mr.  B.  said  that  Mr.  Winnington  did  make  2000Z.  per  year 
by  it.  My  lord  answered,  that  Mr.  W.  made  great  advantage  by  his  city 
practice,  but  did  not  believe  he  made  so  much  of  it.  I  told  his  lordship  of 
what  Mr.  W.  had  said  before  the  counsel  on  Wednesday,  on  the  behalf  of 
stage  coaches,  which  were  then  attempted  to  be  overthrown. 

"  At  our  coming  away,  my  lord  did  reiterate  his  willingness  to  direct  and 
assist  me ;  and  I  did  beg  of  his  lordship,  that  he  would  permit  me  to  consult 
his  lordship  in  the  reason  of  any  thing  that  I  was  ignorant  of;  and  that  his 
lordship  would  be  pleased  to  examine  me  in  what  I  should  read,  that  he 
might  find  in  what  measure  I  did  apply  myself  to  the  execution  of  his  com- 
mands." 

VOL.  I. — B 


xviii  MR.  EMLYN'S 

and  to  all  this  a  man  that  was  so  absolute  a  master  of  the 
science  of  the  law,  and  even  of  the  most.abstruse  and  hidden 
parts  of  it,  that  one  may  truly  say  of  his  knowledge  of  the 
law,  what  St.  Austin  said  of  St.  Hierom's  knowledge  in  di- 
vinity. Quod  Hieromjmus  nescivit,  nullus  mortalium  unquam 
scivit.  And  therefore  the  king  would  not  suffer  himself  to 
part  with  so  great  a  man,  till  he  had  placed  upon  him  all  the 
marks  of  bounty  and  esteem,  which  his  retired  and  weak 
condition  was  capable  of." 

To  this  the  new  chief  justice,  speaking  of  his  predecessor, 
answered  in  the  following  words. 

*' A  person  in  whom  his  eminent  virtues  and 

deep  learning  have  long  managed  a  contest  for  the  superior- 
ity, which  is  not  decided  to  this  day,  nor  will  it  ever  be 
determined,  I  suppose,  which  shall  get  the  upper  hand:  A 
person  that  has  sat  in  this  court  many  years,  of  whose  actions 
there  I  have  been  an  eye  and  ear  witness;  that  by  the 
greatness  of  his  learning  always  charmed  his  auditors  to 
reverence  and  attention :  A  person  of  whom  I  think  I  may 
boldly  say,  that  as  former  times  cannot  show  any  superior 
to  him,  so  I  am  confident  succeeding  and  future  time  will 
never  shew  any  equal.  These  considerations,  heightened 
by  w'hat  I  have  heard  from  your  lordship  concerning  him, 
made  me  anxious  and  doubtful,  and  put  me  to  a  stand  how 
I  should  succeed  so  able,  so  good,  and  so  great  a  man.  It 
doth  very  much  trouble  me,  that  I,  who,  in  comparison  of 
him,  am  but  like  a  candle  lighted  in  the  sun-shine,  or  like  a 
glow-worm  at  mid-day,  should  succeed  so  great  a  person, 
that  is  and  will  be  so  eminently  famous  to  all  posterity;  and 
I  must  ever  wear  this  motto  in  my  breast  to  comfort  me,  and 
in  my  actions  to  excuse  me, 

"  Sequitur,  quamvis  non  passibits  cBquis^ 

Mr.  Baxter,  with  whom  our  author  was  very  intimate 
towards  the  latter  part  of  his  life,  describes  him  in  these 
words  :(^)  *'Sir  Matthe?v  Hale,  that  unwearied  student,  that 
prudent  man,  that  solid  philosopher,  that  famous  lawyer, 
that  pillar  and  basis  of  justice,  who  would  not  have  done  an 
unjust  act  for  any  worldly  price  or  motive,  the  ornament  of 
his  majesty's  government"  and  honour  of  England,  the 
highest  faculty  of  the  soul  of  Westminster-Hall,  and  pattern 
to  all  the  reverend  and  honourable  judges;  that  godly  serious 

{h)  Baxter's  Notes  on  Lord  Hale's  Life,  p.  43. 


PREFACE.  xLx 

practical  christian,  the  lover  of  goodness  and  all  good  men, 
a  lamenter  of  the  clergies  selfishness  and  unfaithfulness 
and  discord  and  of  the  sad  divisions  following  hereupon ; 
an  earnest  desirer  of  their  reformation,  concord  and  the 
church's  peace,  and  of  a  reformed  act  of  uniformity,  as 
the  best  and  necessary  means  thereto;  that  great  con- 
temner of  the  riches,  pomp  and  vanity  of  the  world;  that 
pattern  of  honest  plainness  and  humility,  who  while  he  fled 
from  the  honour  that  pursued  him,  was  yet  lord  chief  justice 
of  the  king's  bench,  after  being  long  lord  chief  baron  of  the 
Exchequer;  living  and  dying,  entring  on,  using,  and  volun- 
tarily surrendering  his  place  of  judicature  with  the  most 
universal  love,  honour  and  praise,  that  ever  did  Efiglish  sub- 
ject in  this  age,  or  any  that  just  history  doth  acquaint  us 
with,"  <^c.  6fC.  SfC. 

Thus  far  for  the  author. 

As  to  the  work  itself,  if  any  of  our  author's  performances 
might  challenge  the  precedence  of  the  rest,  this  seems  to 
have  the  justest  claim  to  it,  as  being  a  favourite  work,  which 
he  often  reviewed,  and  was  at  vast  pains  and  charge  in  fur- 
nishing himself  with  proper  materials  for  it. 

His  compassionate  concern  for  the  lives  and  liberties  of 
mankind  on  the  one  hand,  and  for  preserving  the  public 
peace  and  tranquility  on  the  other,  had  possessed  him  with 
an  opinion  of  the  high  importance,  that  the  pleas  of  the 
crown,  especially  those  relating  to  capital  offenses,  should 
be  reduced  to  certain  rules,  and  those  rules  clearly  and 
plainly  understood,  that  so  there  might  be  as  little  room  left 
as  possible  either  for  erring  in,  or  perverting  of  judgment. 

It  was  this  led  him  to  make  the  crown  law  his  principal 
study,  to  which  he  applied  himself  with  great  assiduity ;  for 
as  bishop  Burnet  speaking  of  this  treatise  informs  us,(/)  "  It 
was  by  much  search  and  long  observation  he  composed  that 
great  work  concerning  it."  The  same  author  acquaints  us,{m) 
that  he  had  begun  his  collections  relating  hereto  in  the 
reign  of  King  Charles  I.  "But  after  the  king  was  murdered 
he  laid  them  by;  and  that  they  might  not  fall  into  ill  hands, 
he  hid  them  behind  the  wainscotting  of  his  study,  for  he 
said,  there  rvas  no  rtiore  occasion  to  use  them,  till  the  king 
should  he  again  restored  to  his  right;  and  so  upon  his  ma- 
j6sty'«  restoration  he  took  them  out,  and  went  on  in  his 
desigit  to  perfect  that  great  work." 

{I)  p.  90.  (m)  p.  39. 


XX  MR.  EMLYN'S 

Hence  it  appears  liighly  probable,  that  he  intended  this 
work  for  the  pubhc,  altho  the  business  of  his  station  did  not 
afford  him  leisure  to  publish  it  during  his  life;  however, 
about  four  years  after  his  death,  the  house  of  Commons  took 
singular  notice  of  it,  and  thought  it  a  work  of  such  conse- 
quence, as  to  pass  a  vote,(;^)  desiring  his  executors  to  print 
it;  and  appointed  a  committee  to  take  care  thereof:  but  that 
parliament  being  soon  after  dissolved, (o)  this  design  dropt. 

Some  years  since  there  was  published  a  treatise,  intitled, 
Pleas  of  the  Crown  by  »Sir  Matthew  Hale ;  but  this  was  only 
a  plan  of  this  work,  containing  little  more  than  the  heads  or 
divisions  thereof,  concerning  which  the  editor  in  his  preface 
expresses  himself  thus,  "  He  [our  author]  hath  written  a 
large  work  upon  this  subject,  intitled,  A?i  History  of  the 
Pleas  of  the  Crown,  wherein  he  shews  what  the  law  an- 
ciently was  in  these  matters,  what  alterations  have  from 
time  to  time  been  made  in  it,  and  what  it  is  at  this  day.  He 
wrote  it  on  purpose  to  he  pri?ited,  finished  it,  had  it  all  tran- 
scribed for  the  press  in  his  life-time,  and  had  revised  part  of 
it  after  it  was  transcribed." 

It  is  therefore  to  be  hoped,  the  publication  hereof  will  not 
be  thought  any  way  to  interfere  with  the  direction  of  his 
will.  That  none  of  his  MSS.  should  be  printed  after  his  death, 
except  such  as  he  should  give  order  for  during  his  life,  his 
intention  for  printing  it  being  so  apparent,  as  may  well 
amount  to  an  order  for  so  doing. 

Besides,  as  bishop  Burnet  observes,(j9)  this  prohibitory 
clause  in  the  will  seems  in  some  measure  to  be  revoked  by 
his  codicil,  wherein  he  orders,  that  if  amj  book  of  his  writing 
should  be  printed,  then  what  should  be  given  as  a  consideration 
for  the  copy  should  be  divided,  &c.  a  kind  of  implication,  that 
he  had  left  the  printing  thereof  to  the  discretion  of  his  ex- 
ecutors. 

The  above-mentioned  writer  further  observes,(^)  that  his 
unwillingness  to  have  any  of  his  works  printed  after  his 
death,  preceded  from  an  apprehension,  lest  they  should 
undergo  any  expurgations  or  interpolations  in  the  licensing 
them;  for  this,  he  said,  might  in  matters  of  law  prove  to  be  of 
such  mischievous  consequence,  that  he  was  resolved  none  of  his 
writings  should  be  at  the  mercy  of  the  licensers. 

(n)  iVo».  29,  1680.  (o)  Jan.  18,  1680. 

(p)  p.  185.  ($)  p.  186, 


PREFACE.  xxi 

But  as  there  is  no  such  thing  required  by  the  laws  now 
in  being,  that  reason  is  at  an  end,  and  the  reader  may  be 
assured,  that  the  edition  here  offered  to  the  public  is  printed 
faithfully  from  the  author's  original  manuscript. 

This  manuscript  consists  of  one  thick  folio  volume,  all  in 
our  author's  own  hand-writing,  from  whence  it  was  tran- 
scribed in  his  life-time,  and  the  transcript  has  since  been 
bound  up  in  seven  small  volumes  in  folio. 

It  had  been  by  him  revised  as  far  as  Chap.  27.  in  the  first 
part,  viz.  about  the  middle  of  the  third  volume,  as  appears 
from  many  interlineations  and  additions  in  his  own  hand ; 
the  corrections  in  the  remaining  part  are  in  another  (very 
modern)  hand,  and  in  some  places  not  very  agreeable  to  the 
scope  of  the  argument. 

This  transcript,  therefore,  so  far  as  revised  and  corrected 
by  our  author  (and  no  farther),  may  be  deemed  the  original 
finished  and  perfected ;  but  since  even  in  this  part  there  are 
in  some  places  leaves  taken  out,  and  others  inserted  in  their 
room  in  a  different  hand,  unauthenticated  by  our  author, 
and  sometimes  quite  disturbing  the  coherence  and  connexion 
of  the  discourse,  it  was  not  thought  warrantable  to  consider 
such  interpolations  as  a  part  of  this  treatise;  for  as  it  cannot 
be  doubted  but  great  regard  will  be  always  paid  to  the  per- 
formance of  so  esteemed  an  author,  it  is  a  piece  of  justice 
due  both  to  the  author  and  the  public,  that  nothing  should 
be  herein  inserted,  but  what  is  undeniably  his,  and  carries 
evident  marks  of  being  by  him  intended  as  part  of  this 
work. 

The  title  hereof  was  named  by  our  author  himself  Histo- 
ria  Placitorwn  Cornce;  for  he  intended,  as  appears  from  the 
Proemium,  to  have  taken  in  the  whole  body  of  the  crown- 
law,  as  well  in  relation  to  matters  civil,  as  matters  criminal; 
for  which  purpose  he  once  designed  to  have  added  two  more 
books  upon  this  subject,  the  one  concerning  offenses  not 
capital,  the  other  touching  franchises  and  liberties ;  but  to 
the  great  detriment  of  the  public,  neither  of  these  appears 
ever  to  have  been  composed  by  him;  so  that,  as  it  now 
stands,  it  treats  only  of  offenses  capital,  which  is  indeed  the 
most  important  branch  of  the  crown-law,  being  what  most 
nearly  affects  the  life  and  liberty  of  the  subject;  besides,  in 
treating  hereof,  he  has  unavoidably  explained  many  inci- 
dental matters  equally  applicable  to  offenses  not  capital. 

The  Jirst  part  of  'this  work  relates  to  the  nature  of  the 


xxii  MR.  EMLYN'S 

offenses,  viz.  the  several  kinds  of  treason,  lieresy  and  felony, 
the  second  of  these,  heresy,  being  an  offense  of  a  spiritual 
nature,  of  which  it  was  not  our  author's  purpose  to  treat, 
w'as  at  first  wholly  omitted  by  him;  but  afterwards  con- 
sidering, as  I  suppose,  that  by  its  being  circumscribed  by 
act  of  parliament,  viz.  1  Uliz.  it  became  an  offense  of  tem- 
poral cognizance,  he  thought  proper  to  insert  a  chapter 
upon  that  head. 

The  second  part  relates  to  the  manner  of  proceeding 
against  offenders;  wherein  are  considered  the  jurisdiction  of 
the  several  courts;  the  manner  of  apprehending,  committing, 
bailing,  and  arraigning  offenders;  their  several  pleas,  bring- 
ing them  to  trial,  judgment,  and  execution. 

Having  thus  given  some  general  account  of  the  author 
and  the  work,  it  will  be  proper,  in  the  next  place,  to  acquaint 
the  reader  with  the  part  I  have  had  in  this  addition,  which 
has  been  to  supervise  the  printing  thereof,  that  it  be  agree- 
able to  our  author's  manuscript,  which  being  written  in  a 
very  obscure  hand,  might,  by  one  wholly  unacquainted 
w^ith  the  law,  have  been  frequently  mistaken. 

To  make  this  work  the  more  authentic,  the  several  refer- 
ences herein  made  to  the  records  have  been  compared  with 
the  originals  at  the  respective  offices  in  the  Tower  and  West- 
minster. 

I  have  also  carefully  examined  the  several  quotations  from 
the  year-books,  reports,  &c.  many  of  which  being  quoted 
without  folio  or  page,  or  else  mis-quoted,  have  with  no  small 
trouble  been  supplied  and  rectified ;  for  our  author,  not  hav- 
ing always  had  leisure  to  consult  the  books  themselves,  has 
frequently  copied  from  the  mis-printed  quotations  in  the 
margin  of  lord  CoMs  third  volume  of  his  Institutes. 

As  it  cannot  be  expected,  but  in  the  writing  so  large  a 
manuscript,  some  words  must,  currente  calamo,  have  been 
omitted  or  wrong  written,  I  have  in  some  few  places  taken 
the  liberty  to  add  or  alter  a  word  or  two  to  preserve  the 
sense;  but  have  been  particularly  careful  to  distinguish 
such  addition  or  alteration  within  crotchets,  that  -I  might 
not  impose  my  judgment  on  the  reader,  but  leave  him  to 
judge  for  himself,  whether  the  drift  of  our  author's  reason- 
ing do  not  require  it. 

I  have  likewise  subjoined  a  few  notes,  containing  some 
observations  from  the  records;  as  also  remarking,  where  the 
law  hath  been  since  explained  by  later  resolutions,  or  altered 


PREFACE.  xxiii 

by  subsequent  acts  of  parliament;  but  as  these  acts  are  some- 
times very  long,  consisting  of  many  clauses,  the  reader  is 
desired  to  use  the  same  caution  here,  which  is  recom- 
mended by  our  author(r)  with  regard  to  those  recited  in 
the  work  itself,  viz.  "  that  he  rely  not  barely  upon  the  ab- 
stracts thereof  here  given,  but  peruse  the  statutes  them- 
selves in  the  books  at  large." 

I  am  sensible  many  slips  and  omissions  must  needs  have 
happened  in  the  supervising  so  large  a  work  of  so  critical  a 
nature,  but  hope  that  will  plead  my  excuse,  at  least  to  those, 
who  consider  the  wide  difference  between  perusing  it  in  a 
fair  print  and  in  a  difficult  manuscript. 

(r)  Part  I.  p.  261. 
March  30,  1736. 


(Q*  For  Table  of  Cases  (cited  in  the  notes,)  and  Table  of  Abbre- 
viations, see  the  beginning  of  Vol.  II, 


A  TABLE 


SEVERAL  CHAPTERS  CONTAINED  IN  THE  FIRST  PART. 


PAGE. 

Chapter  I.  Concerning  capital  punishments  1 

Chapter  II.  Concerning  the  several  incapacities  of  persons, 
and  their  exemptions  from  penalties  by  reason  thereof  14 

Chapter  III.  Touching  the  defect  of  infancy  and  non-age  16 

Chapter  IV.  Concerning  the  defect  of  ideocy,  madness,  and 
lunacy,  in  reference  to  criminal  punishments  29 

Chapter  V.  Concerning  casualty  and  misfortune,  how  far  it 
excuseth  in  criminals  38 

Chapter  VI.  Concerning  ignorance,  and  how  far  it  prevails  to 
excuse  in  capital  crimes  42 

Chapter  VII.  Touching  incapacities  or  excuses  by  reason  of 
civil  subjection  *  43 

Chapter  VIII.  Concerning  the  civil  incapacities  by  compulsion 
and  fear  49 

Chapter  IX.  Concerning  the  privilege  by  reason  of  necessity       52 

Chapter  X.  Concerning  the  offense  of  high  treason,  the  person 
against  whom  committed,  and  the  reason  of  the  greatness  of 
the  offense;  and  touching  alligeance  58 

Chapter  XI.  Concerning  treason  at  the  common  law,  and  their 
uncertainty  76 

Chapter  XII.  Touching  the  statute  of  25  E.  3.  and  the  high 
treasons  therein  declared  87 


xxvi    A  TABLE  OF  THE  SEVERAL  CHAPTERS 

PAGE. 

Chapter  XHI.  Touching  high  treason  in  compassing  the  death 
of  the  icing,  queen,  or  prince  91 

Chapter  XIV.  Concerning  levying  of  war  against  the  king         130 

Chapter  XV.  Concerning  treason  in  adhering  to  the  king's 
enemies  within  the  knd  or  without  159 

Chapter  XVL  Concerning  treason  in  counterfeiting  the  great 
seal,  or  privy  seal  170 

Chapter  XVH.  Concerning  high  treason  in  counterfeiting  the 
king's  coin,  and  in  the  first  place  touching  the  history  of  the 
coin  and  coinage  of  England  188 

Chapter  XVHI.  Concerning  the  adulteration  or  impairing  of 
coin,  and  the  antient  means  used  to  remedy  it  205 

Chapter  XIX.  Concerning  the  counterfeiting  of  the  king's  coin, 
what  it  is,  what  the  penalty  thereof  antiently,  and  what  at 
this  day  210 

Chapter  XX.  Concerning  treason  in  bringing  in  false  money     225 

Chapter  XXI.  Concerning  high  treason  in  killing  the  chan- 
cellor, &c.  230 

Chapter  XXII.  Concerning  principals  and  accessaries  in  treason  233 

Chapter  XXIII.  Concerning  forfeitures  by  treason  239 

Chapter  XXIV.  Concerning  declaring  of  treasons  by  parlia- 
ment, and  those  treasons  that  were  enacted  or  declared  by 
parliament  between  the  25  E.  3.  and  the  1  Mar.  258 

Chapter  XXV.  Concerning  treasons  declared  and  enacted  from 
1  Mar.  till  this  day,  viz.  13  Car.  2.  307 

Chapter  XXVI.  Concerning  the  judgments  in  high  treason, 
and  the  particulars  relating  thereunto,  and  to  attainders  342 

Chapter  XXVII.  Touching  corruption  of  blood,  and  restitution 
thereof,  loss  of  dower,  forfeiture  of  goods,  and  execution  354 

Chapter  XXVIII.  Touching  the  crime  of  misprision  of  treason 
and  felony,  &c.  .  371 

Chapter  XXIX.  Concerning  petit  treason  377 

Chapter  XXX.  Concerning  heresy  and  apostacy,  and  the  pun- 
ishment thereof  383 

Chapter  XXXI.  Concerning  homicide  and  first  of  self  killing, 
or  felo  de  se  411 

Chapter  XXXII.  Of  deodands  419 

Chapter  XXXIII.  Of  homicide,  and  its  several  kinds,  and  first 
of  those  considerations,  that  are  applicable  as  well  to  murder 
as  to  manslaughter  .  424 


CONTAINED  IN  THE  FIRST  PART.  xxvii 

PAGE. 

Chapter  XXXIV.  Concerning  commanding,  counselling,  or 
abetting  of  murder  or.  manslaughter  435 

Chapter  XXXV.  Concerning  the  death  of  a  person  unknown, 
and  the  proceedings  thereupon  447 

Chapter  XXXVI.  Touching  murder,  what  it  is,  and  the  kinds 
thereof  449 

Chapter  XXXVII.  Concerning  murder  by  malice  implied  pre- 
sumptive, or  malice  in  law  455 

Chapter  XXXVIII.  Of  manslaughter,  and  particularly  of  man- 
slaughter exempt  from  clergy  by  the  statute  of  1  Jac.  cap.  8.    466 

Chapter  XXXIX.  Touching  involuntary  homicide,  and  first  of 
chance-medley,  or  killing  per  infortunium  471 

Chapter  XL.  Of  manslaughter  ex  necessitate,  and  first  se  de- 
fendendo  H    473 

Chapter  LXI.  Concerning  the  forfeiture  of  him  that  kills  in 
his  own  defense,  or  per  infortunium  492 

Chapter  XLII.  Concerning  the  taking  away  of  the  life  of  man 
by  the  course  of  law,  or  in  execution  of  justice  496 

Chapter  XLIII.  Of  larciny  and  its  kinds  503 

Chapter  XLIV.  Concerning  the  divershies  of  grand  larcinies 
among  themselves  in  relation  to  clergy  517 

Chapter  XLV.  Concerning  petit  larciny  ,      530 

Chapter  XLVI.  Of  robbery  532 

Chapter  XLVII.  Concerning  restitution  of  goods  stolen,  and 
the  confiscation  of  goods  omitted  in  the  indictment  or  the 
appeal  538 

Chapter  XLVIII.  Of  burglary,  the  kinds  and  punishments         547 

Chapter  XLIX.  Of  arson,  or  wilful  burning  of  houses  566 

Chapter  L.  Concerning  felonies  by  the  common  law,  relating 
to  the  bringing  of  felons  to  justice,  and  the  impediments 
thereof,  as  escape,  breach  of  prison,  and  rescue;  and  first 
touching  arrests  575 

Chapter  LI.  Of  felony  by  voluntary  escapes,  and  touching 
felony  by  escapes  of  felons  590 

Chapter  LI  I.  Of  negligent  escapes  600 

Chapter  LIII.  Concerning  rescues  of  prisoners  in  custody  for 
felony  606 

Chapter  LIV.  Concerning  escapes  and  breach  of  prison  by  the 
party  himself,  that  is  imprisoned  for  felony  607 

Chapter  LV.  Of  principals  and  accessaries  in  felony,  and  first 
of  accessaries  before  the  fact  612 


xxviii    A  TABLE  OF  THE  SEVERAL  CHAPTERS,  &c. 

PAGE. 

Chapter  LVL  Of  acqessaries  after  the  fact  618 

Chapter  LVIL   Concerning  the  order  of  proceeding  against 
accessaries  623 

Chapter  LVHI.  Concerning  felonies  by  act  of  parliament,  and 
first  concerning  rape  626 

Chapter  LIX.   Concerning  the  felony  de  uxore  abdncta  sive 
rapta  cum  bonis  viri,  super  statutum  Westm.  2.  cap.  34.  637 

Chapter  LX.  Of  felony  by  purveyors  taking  victuals  without 
warrant  -  /  639 

Chapter  LXL   Concerning  the  new  felonies  enacted  in  the 
times  of  E.  2.  E.  3.  and  R.  2.  620 

Chapter  LXH,  Concerning  the  new  felonies  enacted  in  the 
time  of  H.  4.  H.  5,  H.  6.  E.  4.  644 

Chap'sUr  LXHL  Concerning  the  new  felonies  enacted  in  the 
times  of  R.  3.  H.  7.  H.  8.  E.  6.  and  Q.  Mary  656 

Chapter  LXIV.  Concerning  felonies  newly  enacted  in  the  time 
of  Q.  Elizabeth,  K.  James,  and  K.  Charles  L  681 

Felonies  enacted  in  the  time  of  K.  Charles  H.  K.  James  H.    . 
K.  WilUam  HL  Q.  Anne,  K.  George  I.  and  K.  George  H.  697 

Chapter  LXV.  Certain  general  observations  concerning  felo- 
nies by  act  of  parliament  703 

Felonies  enacted  since  the  last  edition  of  this  book  in  the  year 
1778  725 


THE  PROEMIUM. 


THE    METHOD   OF   THE    WORK   INTENDED. 

Having  an  intention  to  make  a  full  collection  of  the  Pleas 
of  the  Crown,  I  shall  divide  those  Pleas  into  two  general 
Tracts. 

The  first,  concerning  pleas  of  the  crown  in  matters 
criminal. 

The  second,  concerning  pleas  of  the  crown  in  matters 
civil;  namely,  concerning  franchises  and  liberties. 

The  former  will  be  the  subject  of  the  first  and  second 
books,  the  latter  of  the  third  book. 

First,  therefore,  I  shall  begin  with  the  several  kinds  of 
crimes,  that  make  up  the  subject  matter  of  my  first  and 
second  book. 

Crimes  that  are  punishable  by  the  laws  of  England,  are 
for  their  matter  of  two  kinds, 

1.  Ecclesiastical. 

2.  Temporal. 

The  former  of  these,  namely,  such  crimes  as  I  call  Eccle- 
siastical, are  of  ecclesiastical  cognizance;  and  though  all 
external  jurisdiction^  as  well  ecclesiastical  as  temporal,  is 
derived  from  the  Crown  of  Engla7id,  and  all  criminal  pro- 
ceedings in  the  ecclesiastical  courts,  are  in  some  kind  Pla- 
cita  Cor  once  suits  for  the  king,  and  such  as  he  may  pardon 
or  discharge,  as  being  his  own  suits,  yet  these  I  shall  not 
meddle  with  at  this  time. 

The  second  sort,  viz.  Temporal  crimes,  which  are  offenses 
against  the  laws  of  this  realm,  whether  the  common  law  or 
acts  of  parliament,  are  divided  into  two  general  ranks  or 
distributions  in  respect  of  the  punishments  that  are  by  law 
appointed  for  them,  or  in  respect  of  their  nature  or  degree: 


XXX  THE  PROEMIUM  TO 

and  thus  they  may  be  divided  into  capital  offenses,   or 
offenses  only  criminal;  or  rather,  and  more  properly,  into 
■   ■  Felotiies  and 

Misdemeanors,  " 

because  there  is  no  capital  offense  but  hath  in  it  the  crime 
of  felony :  and  yet  there  be  some  felonies,  that  are  not  in 
their  nature  capital,  whereof  hereafter. 

Crimen  capitale,  or  felony,  in  this  acceptation  is  of  two 
kinds,  namely, 

That  which  is  complicated,  and  hath  a  greater  offense 
joined  with  it,  namely  Treason,  and 

That  which  is  simple  Felony. 

Touching  the  former  of  these,  namely  Treason,  it  is  that 
capital  offense,  which  is  committed  against  some  special 
civil  obligation,  of  subjection  and  faith  more  than  is  found 
in  other  capital  offenses,  and  therefore  it  hath  the  denomina- 
tion oiproditio,  and  the  offense  is  laid  to  be  done  prodilorie. 

This  offense  of  Treason  is  of  two  kinds,  namely, 

That  which  is  against  the  highest  civil  obligation,  namely, 
against  the  king,  his  crown  and  dignity,  which  is  called 
High-treason. 

Or  against  some  other,  to  whom  a  civil  obligation  of  faith 
is  made  or  implied,  which  is  called  Petit-treason. 

The  offenses  of  high-treason  are  of  two  kinds,  .?;zV. 

Such  as  were  treasons  by  the  common  law,  or, 

Such  as  were  made  so  by  special  acts  of  parliament. 

The  offenses  of  simple  felony  are  likewise  of  the  same 
distribution,  namely. 

Such  as  were  felonies  at  common  law,  and, 

Such  as  are  by  act  of  parliament  put  into  the  degree,  or 
under  the  punishment  of  felony. 

And  the  same  distribution  is  to  be  made  touching  misde- 
meanors, namely  they  are. 

Such  as  are  so  by  the  common  law,  or 

Such  as  are  specially  rpade  punishable  as  misdemeanors 
by  acts  of  parliament. 

This  is  the  general  order  and  distribution  of  the  first  and 
second  book  of  this  tractate,  namely,  concerning  the  matters 
of  the  Pleas  of  the  Crown  in  criminals;  or  those  crimes, 
which  come  under  the  cognizance  of  the  laws  of  this  king- 
dom, wherein  the  prosecution  is  pro  rege,  or  in  his  name  or 
right,  as  the  common  vindex  of  public  injuries  or  crimes. 

The  particular  enumeration  of  these  several  offenses  is 


HISTORIA  PLACITORUM  CORONA.  xxxi 

much  of  the  business  of  those  charges,  that  are  given  to  the 
grand  jury  by  the  justices  in  their  several  sessions;  and  they 
were  for  the  most  part  heretofore  contained  in  certain  arti- 
cles or  heads  of  inquiry  delivered  out  in  writing  to  the 
several  inquests,  and  were  often  stiled  Capitula  Placitonim 
Coronce;  such  were  those  of  i^.  1.  mentioned  by  Hovede?i, 
p.  744,  783.  which  were  delivered  to  the  inquisitors  in 
every  wappentach  or  hundred,  and  to  the  justices  itinerant 
to  make  inquiry  upon,  and  by  them  to  the  grand  inquests; 
and  such  were  those  Articuli  itineris  declared  by  Bracton, 
Lib.  III.  de  corona,  cap.  1.  and  printed  in  the  old  Magna 
Charta  for  the  justices  in  eyre  to  make  inquiry  upon,  which 
I  shall  not  here  repeat  at  large,  but  shall  take  them  up  as 
I  shall  have  occasion  to  use  them. 

The  order  which  I  shall  observe  in  these  Pleas  of  the 
Crown  will  be  this : 

I.  In  the  first  book  I  will  consider  of  capital  offenses, 
Treason  and  Felonies;  which  book  will  be  divided  into 
two  parts : 

1.  The  enumeration  of  the  hinds  of  treasons  and  felonies 
as  well  by  common  law,  as  by  acts  of  parliament. 

2.  The  whole  method  of  proceedings  in  or  upon  them. 

II.  The  second  book  will  treat  of  matters  criminal,  that  are 
not  capital;  and 

III.  The  third  book  will  be  touching  franchises  and  liher- 
ties.{*) 

(*)  That  which  is  here  offered  to  the  public,  is  only  the  first  of  these  books, 
consisting  of  two  parts ;  the  other  two  books  having,  as  I  have  been  credibly 
informed,  never  been  composed  by  our  author. 


HISTOlilA  PLACITORUM  COW^M. 


PART  I. 


CHAPTER  I. 

CONCERNING  CAPITAL  PUNISHMENTS. 

Being  to  treat  concerning  capital  offences,  it  will  not  be  amiss  to  pre- 
mise something  touching  capital  punishments. 

Laws,  that  are  introdnced  by  custom,  or  instituted  by  the  legislative 
authority  for  the  good  of  civil  societies,  would  be  of  little  effect,  unless 
they  had  also  their  sanctions,  imposing  penalties  upon  the  offenders 
of  those  laws. 

These  penalties  are  various  according  to  the  several  natures  of  the 
offences,  or  the  detriment  that  comes  thereby  to  civil  societies  ;  some 
are  only  pecuniary;  some  corporal,  but  not  capital,  such  as  imprison- 
ment, stigmatizing,  banishment,  servitude,  and  the  like;  others  are 
capital,  ultimum  siippUcium,  or  death;  and  that  death  sometimes 
accompanied  with  greater,  sometimes  with  less  degrees  of  severity. 

So  that,  although  offences  against  the  good  of  human  society  be  many 
of  ihem  prohibited  by  the  laws  of  God  and  nature,  yet  the  punishments 
of  all  such  offences  are  not  determined  by  the  law  of  natiu-e  to  this 
or  that  particular  kind,  but  are  for  the  most  part,  if  not  altogether,  left 
to  the  positive  laws  and  constitutions  of  several  kingdoms  and  states. 

And  therefore,  although  most  certainly  the  penalties  instituted  by 
God  himself  among  his  ancient  people  upon  the  breach  of  their  laws 
were  with  the  highest  wisdom  fitted  to  that  state,  and  all 
lavv^s  and  instituted  punishments  should  come  up  as  near  to  [  2  ] 
that  pattern,  as  may  be  ;  yet  as  to  the  degrees  and  kinds  of 
punishments  of  offences  in  foro  civiii  vel  judicinrio  they  are  not 
obliging  to  all  other  kingdoms  or  states,  but  all  states,  as  well  chris- 
tian as  heathen,  have  varied  from  them. 

And  therefore  it  will  not  be  amiss  to  instance  in  the  various  kinds 
of  punishments  inflicted  by  the  several  laws  of  several  countries,  es- 
pecially in  those  two  offences  of  homicide  and  theft,  which  are  the 
most  common  and  obvious  offences  in  all  countries. 

By  th.eancientest  divine  law,  that  we  read,  the  punishment  of  homi- 

VOL.    I. —  1 


2  HISTORIA  PLACITORUM  CORONA. 

cide  was  with  death.  Gen.  ix.  G.  "Whosoever  sheds  man's  blood, 
by  man  shall  his  blood  be  slied."(^/) 

And  the  judicial  law  given  by  Moses  was  pnrsnantto  it,  with  some 
temperaments  and  explanations.  Exod.  xxi.  12,  1,3,  14.  "He,  tliat 
smiteth  a  man,  so  that  he  die,  shall  surely  be  put  to  death.  And  if 
a  man  lie  not  in  wait,  but  God  deliver  him  into  his  hand ;  then  1  will 
appoint  thee  a  place,  whither  he  shall  flee.  But  if  a  man  come  pre- 
sumptuously upon  his  neighbour  to  slay  him  with  guile;  thou  shalt 
take  him  awa.y  from  mine  altar,  that  he  may  die."  And  v.  18, 19.  "And 
if  men  strive  together,  and  one  smite  another  with  a  stone,  or  with 
his  fist,  and  he  die  not,  but  keepeth  his  bed  ;  if  he  rise  again,  and  walk 
abroad  upon  his  staff,  then  shall  he  that  smote  him,  be  quit;  only  he 
shall  pay  (pr  the  loss  of  his  time,  and  for  his  cure." 

And  what  this  delivery  by  God  of  a  man  into  his  neighbour's  hand 
is,  is  best  expounded  Deut.  xix.  4,  5,  6,  11,  12.  "Whoso  killeth  his 
neighbour  ignorantly,  whom  he  hated  not  in  time  past,  as  where  a 
man  cleaveth  wood,  and  the  ax  flieth  from  the  helve,  and  killeth  a 
man,  he  shall  fly  to  the  city  of  refuge, (6)  lest  the  avenger(c) 
[  3  ]  of  blood  pursue, and  slay  him  while  his  heart  is  hot;  where- 
as he  was  not  worthy  of  death,  in  that  he  hated  him  not  in 
time  past:  But  if  any  man  hate  his  neighbour,  and  lie  in  wait  for 
him,  and  rise  up  against  him,  and  smite  him  mortally,  that  he  die, 
and  he  fleeth  to  one  of  those  cities,  the  elders  of  his  city  shall  send 
and  fetch  him  thence,  and  deliver  him  into  the  hand  of  the  avenger 
of  blood,  that  he  may  die."(rf) 

Again ;  Exod.  xxii.  2.  "  If  a  thief  be  found  breaking-up,  and  be 
smitten,  that  lie  die,  there  shall  no  blood  be  shed  for  him ;  if  the  sun 

{a)  Tliis  law  being  given  to  Noah,  from  whom  all  men  are  derived,  is  not  peculiar  to 
the  Israelites ;  but,  as  our  author  observes  below,  is  binding  on  all  mankind. 

{i)  Concerning  these  cities  of  refuge,  see  Exod.  xxi.  13.  Numb.  xxxv.  Deut.  iv.  41  Sf 
ssg.     Josh.  XX.  xxi.  Selden :  de  jure  natvruli,  &;c.  Lib.  IV.  cap.  2. 

(c)  Who  this  avenger  of  blood  was,  is  no  where  expressly  said,  it  is  generally  supposed 
that  he  was  the  next  heir  to  the  person  slain.  See  Selden:  de  jur.  nat.  Lib.  IV.  cap.  1. 
6f  de  successionibvs  in  bona  defuncti :  but  tiie  truth  is,  the  Hebrew  words  Gael  ha  dam, 
here  rendered  the  avenper  of  blood,  should  be  rendered  ihenext  of  blood,  for  Gael  properly 
signifies  one  of  the  same  kindred;  it  is  so  rendered  Ruth  ii.  20.  and  iii.  9,  12.  and  is 
usually  expressed  in  the  Septuagint  by  ay^Hwcvv,  which  denotes  one  near  of  kin. 

(d)  If  tiiere  was  no  avenger  of  blood,  or  if  he  would  not  or  could  not  kill  the  slayer,  the 
slayer  was  capitally  punished  by  a  judicial  sentence ;  and  no  ransom  or  recompense  was 
admitted.  Numb.  xxxv.  31.  Selden:  de  jur.  not.  Lib.  IV.  cap.  1.  in  fine;  even  though  the 
person  slain  should  before  his  death  desire  that  the  slayer  should  be  forgiven.  Maimonides 
More  Ncvochim,  Pars  III.  c.  41.  for  all  voluntary  homicide  was  inexpiable,  as  appears 
from  Numb.  xv.  27.  31.  and  the  ease  of  David  in  the  matter  of  Uriah,  Ps.  li.  16.  There 
was  one  case  indeed  of  capital  homicide,  wherein  a  ransom  was  allowed,  viz.  If  an  ox 
were  wont  to  push  with  his  horn,  and  it  had  been  testified  to  his  owner,  and  he  had  not  kept 
liim  in,  so  that  he  had  killed  a  man  or  a  woman,  the  owner  was  to  be  put  to  death,  he 
being  looked  on  as  the  author  of  the  murder,  who  would  not  prevent  it,  when  lie  had 
warning,  and  might  have  done  it;  however,  this  being  a  case  of  gross  negligence,  rather 
than  wilful  malice,  he  was  permitlcd  to  redeem  his  life  by  paying  the  ransom,  which 
was  laid  upon  him.  Exod.  xxi.  21),  30.  the  price  of  a  servant  was  thirty  shekels  of 
silver.  Ibid.  v.  32,  and  that  of  a  freeman  was  generally  double,  viz.  sixty  shekels. 
Maimon.  More  Neiwchim,  Pars  III.  cap.  40. 

This  was  also  felony  liy  the  eomtrion  law  of  E norland,  for  by  such  sufferance  the  owner 
scorned  to  have  a  will  to  kill.  Stamf.  P.  C.  17.  Filz.  Cor.  311.     Vide  post  c.  33  note. 


HISTORIA  PLACITORUM  CORON.E.  3 

be  risen  upon  him  (here  shall  be  blood  shed  for  him  ;  for  he  should 
make  full  reslitulion  ;  if  he  have  notliing,  then  he  shall  be  sold  for  his 
theft." 

Upon  these  judicial  laws,  these  things  are  observable  ;  1.  That  by 
these  laws  the  killing  of  a  man  by  malice  forethought,  or  upon  a  sud- 
den falhng  out,  were  both  iwider  the  same  punishment  of  death. (e) 
2.  That  the  killing  of  a  man  by  misfortune  was  not  liable  to  the 
punishment  of  death,  by  the  sentence  of  the  judge;  but  yet  [  4  ] 
tile  avenger  of  blood  might  kill  him.  before  he  got  to  the  city 
of  refuge. (/)  3.  The  killing  of  a  thief  in  the  night  was  not  liable  to 
punishment  of  death  ;  but  if  it  were  in  the  day-time,  it  was  pun- 
isliable  with  death.  4.  Though  there  is  no  express  law  touching 
killing  a  man  in  his  own  defence, (,§•)  yet  it  seems  the  custom  of  the 
Jeios,  and  the  interpretation  of  the  Jewish  doctors,  excused  that  fact 
from  the  punishment  of  death. (A)  5.  Tliat  the  usual  manner  of  the  exe- 
cution of  the  sentence  of  death  was  stoning,  and  sometimes  strangu- 
lation.(/) 

Now  I  will  consider  some  of  the  laws  of  other  nations  in  reference 
to  homicide;  wherein  though  there  is  a  great  analogy  in  many  things 
between  the  laws  of  tlie  Jews,  and  the  laws  of  other  countries;  so  that 
a  man  may  reasonably  collect,  that  these  judicial  laws  of  the  Jews 
were  taken  up  by  other  nations,  as  the  grand  exemplar  of  their  judi- 
cial laws  ;  yet  in  some  things  they  departed  from  them  in  tlie  particular 
constitutions  and  customs  of  other  countries. 

Among  the  leges  JUticcC  collected  by  Mr  Petit,  Lib.  VII,  tit.  1. 
these  were  many  of  the  laws  concerning  homicide. 

(e)  The  law  was  general,  "That  whoever  smiteth  a  man,  so  that  he  die,  shall  surely 
be  pat  to  death."  Exod.  xxi.  12.  There  were  indeed  some  e.vceptions  from  this  general 
law,  but  setting  aside  the  case  of  a  house-breaker  in  the  night,  they  all  related  to  casual 
invohintary  homicides;  there  is  not  one  exception  of  a  voluntary  designed  killing, 
whether  sudden  or  premeditated,  whatever  interpretations  might  be  afterwards  made  by 
the  Jeioish  Rabins,  who  made  the  commandments  of  God  of  none  eftect  through  their 
traditions,  (Matt.  xv.  6.)  so  that  there  is  nothing  in  the  Jewish  law  to  countenance  the 
distinction  made  by  the  laws  of  England  between  murder  and  manslaughter;  a  distinc- 
tion, which  serves  to  show,  that  though  the  laws  of  England  be  mucli  severer  than  the 
other  in  tlie  case  oi  theft,  yet  tiiey  are  much  milder  in  the  case  of  homicide. 

(/)  Unless  he  fled  to  the  altar,  which  was  also  looked  on  as  a  place  of  refuo-e,  it  hcm(r 
probable  from  Es.od.  xxi.  13,  14.  that  the  altar  was  the  place  of  refuge  before  the  cities 
of  refuge  were  appointed.  (See  Bracton  of  the  English  Law  of  Asylum.)  See  Selden:  dc 
jur.  not.  Lib.  IV.  cap.  2.  If  he  did  escape  to  the  city  of  refuge,  he  was  obliged  to  remain 
there  till  the  death  of  the  high  priest,  tor  the  avenger  of  blood  might  kill  him  wherever 
he  found  him  out  of  the  borders  of  the  city.  Numb.  xxxv.  25—32.  Selden:  uln  supra  ^ 
de  Synedriis,  Lib.  II.  cap.  7.  But  after  the  death  of  the  high-priest,  he  was  at  liberty  to 
go  where  he  would  ;  for  the  reason  hereof  see  Maimonides  More  JSevochim,  Pars  111.  cap. 
40,  and  Ainsworlh  on  Numbers  xxxv.  25. 

(g)  This  was  a  case  so  plainly  justifiable  by  the  law  of  nature,  that  it  needed  no  positive 
law;  however,  the  permission  to  kill  a  thief,  who  should  be  found  breaking  up  in  the 
night,  seems  to  be  an  express  allowance  of  killing  in  one's  own  defence;  for  the  reason 
ot  that  law  is  manifestly  founded  on  the  principle  of  self  preservation.  Nam  adversus 
periculum  naturalis  ratio  permiltit  se  defeiidere.     Digest.  Lib.  9.  Tit.  2.  I.  4. 

(h)  When  done  in  defence  of  life  or  cliastity;  because,  when  lost,  they  are  irreparable, 
sec  Selden:  de  jur.  riatur.  Lib.  IV.  cap.  3.     Maimon.  More  Nevichim,  Pars  III.  cap.  40. 

(i)  Soinetiines  the  execution  was  by  burning;  as  in  the  ca-e  of  a  priest's  daughter,  who 
had  played  the  whore.  Levit.  xxi.  9.  Sometimes  by  decollation,  which  was  the  usual 
way  for  murder.  Selden:   de  Synedriis,  Lib.  II.  cap.  13.  De  jur.  natur.  Lib.  IV.  cap.  1. 


5'  HISTORIA  PLACITORUM  CORONiE. 

Senatus  Areopagiticiis  jus  dicifo  de  cgede,  ant  vulnere,  non  casn,  sed 
voluntate  inflicto;  de  incendio  item,  &  malo  veneno  hommis  necandi 
causa  dato. 

Thesmothetae  in  homicidas  animadvertiinto. 

Si  quis  hominem  sciens  morti  duit,  capital  esto. 

Qui  alium  casu  fortuito  necassit,  in  annum  deportator,  donee 
aliquem  e  cognatis  occisi  placarit;  revertitor  vero  peractis  sacris  & 
lustrationibus. 

Si  quis  imprudens  in  certaminibus  alium  necassit,  aut  insidiantem 
aut  ignotum  in  prselio,  aut  in  uxore,  vel  matre,  vel  sorore,  vel  filia, 
vel  concubina,  vel  ea,  quam  infuis  liberis,  habet  deprehensum,  csedis 
ergo  ne  exulato. 

Si  quis  alium  injuste  vim  inferentem  incontinent!  necassit,  jure 
csesus  esto. 

Si  quis  homicidam  foro,  urbis  ferritorio,  publicis  certaminibus  & 
sacris  Amphictyonicis  abstinentem  occiderit,  aut  mortis  causam  pre- 
buerit,  perinde  ac  si  Atheniensem  civem  necassit,  capital  esto,  & 
Ephetas  jus  dicunto.  So  that  by  this  law  a  man  conscious  to  himself 
of  homicide  might,  before  he  was  apprehended,  undertake  a  volun- 
tary exile,  and  during  such  an  exile  was  privileged  from  the  penalty 
of  homicide. (^) 

Homicidas  morte  multanto  in  patria  occisi  terra,  et  abducunto,  ut 
lege  cautum  est;  in  eos  ne  sasviunto,  neve  pecuniam(/)  exigunto. 

Before  judgment  the  kindred  of  the  party  slain  that  prosecuted  the 
manslayer  might  compound  the  otfence,  and  release  the  offender,  but 
after  judgment  once  given,  neither  the  judge  nor  prosecutor  could 
remit  it.(m) 

Caedis  ne  postulator  nnquam  is  qui  homicidam  exulantem  &redeun- 
tem  quo  non  licet,  in  jus  ad  magistratum  rapuerit  aut  detulerit. 

And  eodeni  libro  tit.  5.  si  nox  furtum  faxit,  si  ini  ali- 

r    6    "1   quis  occisit,JHre  csesus  esto,  according  to  the  Mosaical  law, 

and  from  tlience  transcribed  into  the  Jlttic  laws,  and  from 

thence  by  the  Decemviri  into  the  Roman  laws  of  the  twelve  tables 

in  lotidem.  ve7'bis. 

Among  the  Romans  the  laws  concerning  homicide  differed  in 
some  things  both  from  the  Jeivs  and  Greeks,  as  appears  Dii^est.  Lib. 
XL VIII.  tit.  8.     Jid  legem  Corueliam  de  sicariis ^^  venejiciis. 

Qui  hominem  occiderit  punitor  non  habita  differentia  cujus  condi- 
tionis  hominem(/?)  interemit. 

Qui  hominis  occidendi  furtive  faciendi  causa  cum  telo  ambulave- 

(t)  This  was  the  case  of  Theoclymenus  in  Homer  Odijss.  o.  v.  224,  270.  4-  "•  UT- 

(l)  The  Greek  word  aTravAv  here  rendered  pecuniam,  properly  signifies  a  ransom. 
Horn.  Iliad,  a.,  v.  13,  20,  23,  !)5,  for  by  the  ancient  law  of  Greece  the  punishment  of  honii- 
cide  was  redeemable  by  the  payment  of  a  sum  of  money  to  tiie  relations  of  the  slain, 
which  recompense  was  termed  uTctva  or  ttciviI.    Homer.  Iliad.  1.  v.  628.  ir.  v.  498. 

(m)  That  this  was  the  meaning  of  the  foregoing  law,  see  Petit  in  lecres  Atticas,  Lib, 
VII.  tit.  I.  p.  500.  !^ee  also  the  Oration  of  Demosthenes  against  Aristocrates,  wherein 
most  of  the  Athenian  laws  relating  to  homicide  arc  explained. 

(n)  I.  1.  §.  2. 


HISTORIA  PLACITORUM  CORONiE.  6 

rif(o)  qui  hominem  non  occidit  sed  viilneravit  ut  occidat,  iit  homi- 
cida  datiiiiandiis,  nam  si  gladium  striiixerit  &  cum  eo  percusserit, 
indubitate  occidendi  animo  admissit,  sed  si  clavi  aut  cuccuma  in 
rixa,  qiiamvis  ferro,  percusserit,  tainen  non  occidendi  aninio  lenienda 
psena  ejus,  qui  in  rixa  casu  magis,  quam  voluntate,  homicidium 
adniisit.(/)) 

But  if  it  were  merely  by  misfortune,  it  was  not  punished. (5?) 

Qui  stuprum  sibi  vel  suis  per  vim  inferentem  occidit,  dimiitendus 
est,(>)  sed  is,  qui  uxorem  in  adulterio  deprehensam  occidit,  humi- 
liore  loco  positus  in  exilium  perpetuum  dandus,  in  aliqua  dignitate 
positus  ad  tempus  relegandus.(.s) 

Furem  nocturnum  qui  occiclerit,  impune  feret,  si  parcere  ei  sine 
periculo  suo  non  potuit;(/)  wliich  law,  though  like  to  that  of  the 
Jews  and  Greeks,  the  Roman  lawyers  have  construed, (?/) 
that  it  is  lawful   to  kill  furem  nocturnum  recedentem  &  [|    7    1 
fugientetn  cum  rebus,  licet  se  non  defendat  telo,  sed  non 
diurnum,  nisi  se  defendat  telo. 

The  punishment  of  homicide,  unless  it  were  merely  casual,  among 
the  Romans  was  deportatio  in  insulas  &  omnium  bonorum  adenip- 
tio,  sed  solent  hodie  capite  puiiiri,  nisi  houestiore  loco  positi  fuerint, 
ut  pcenam  legis  sustineant;  humiliores  enim  solent  bestiis  subjici;(a7) 
altiores  vero  deportantur  in  insulas,(^) 

Some  temperaments  they  added  in  other  cases  of  homicide,  as 
banishment  for  five  years, (z)  deportation,  &c.  but  regularly  the 
punishment  of  homicide,  unless  in  case  of  simple  misfortune, (a)  or 
defence  of  life, (6)  was  death,  viz.  bestiis  siibjicianfur. 

Among  the  Saxons{c)  the  punishment  of  homicide  was  not  always, 

(0)  /.  1.  pr.  ^  Cod.  eod.  tit.  Lib.  IX.  tit.  16.  I.  7.  {p)  I.  1.  §.  3. 

(9)  I.  1.  §.  3.  c.  g.  If  a  man,  wlio  was  cutting  a  tree,  should  without  calling  out  throw 
down  a  great  hranch  of  it  upon  one  who  was  passing  by,  and  kill  him,  he  was  to  be 
acquitted,  that  is  to  say,  he  was  not  to  be  proceeded  against  criminally  by  the  lex  Cor- 
nelia  de  sicariis;  for  so  is  the  expression  in  l.  7,  adhnjus  legis  coercilionem  non  pertinet; 
but  still  he  was  liable  by  the  lex  Aquilia  to  make  a  pecuniary  satisfaction  for  the  dam- 
age. Jnstit.  Lib.  IV.  tit.3.  §.  5.  And  tliough  that  law  mentions  only  the  case  of  killing 
a  slave,  yet  there  lay  an  utilis  actio  in  the  case  of  killing  a  freeman.  See  Noodt  ad  Leg, 
Aquil.  cup.  2. 

(r)  L  1.  §.  4.  (s)  I.  1.  §.  5.  (t)  I.  9. 

(m)  This  was  not  a  mere  construction  of  the  Roman  lawyers,  but  is  expressly  provided 
by  the  law  of  the  twelve  tables,  as  appears  from  Digest.  Lib.  IX.  tit.  6.  ad  leg.  Aquil.  I.  4. 
§.  I.  Cic.  pro  Mtlone,  cap.  3.  A.  Gell.  Lib.  18.  cap.  Macrob.  saturnal.  Lib.  1.  cap.  4.  The 
reason  of  this  distinction  between  a  night-thief  and  a  day-thief,  see  in  Grot,  de  jur.  lei. 
ac.  pac.  Lib.  II.  cap.  1.  §.  12. 

(a)  Dig.  Lib.  XLVIII.  tit.  19.  de  panis.  I.  28.  §  15. 

(y)  Dig.  ad  leg.  Cornel,  de  sicariis  1. 16.  (z)  I.  4.  §  1. 

(a)  Cod.  eod.  tit.  I.  1. 

{b)  Cod.  eod.  tit.  I.  2.  Sf  3. 

(c)  It  seems  to  have  buen  the  general  practice  of  most  of  the  northern  nations  to  com- 
mute  the  punishment  of  the  most  heinous  crimes  for  a  pecuniary  mulct.  Lindenbroo-ii 
Codex  Leg.  Antiq.  Lib.  IV.  cap.  3G.  Tacitus  speaking  of  the  ancient  Germans,  .says^it 
was  customary  among  them  to  punish  homicide  with  a  certain  number  of  sheep  and 
oxen,  out  of  which  the  relations  of  him  that  was  slain  received  satisfaction.  Tac.  de 
^nor.  Germ.  cap.  21.  From  hence  probably  our  Saxon  ancestors  brought  the  custom  into 
Britairt. 


7  HISTORIA  PLACITORUM  CORONiE. 

nor  for  the  most  part  capital;  for  it  might  be  redeemed  by  a  recom- 
pense which  went  under  the  name  of  IVeru  and  ff'ere- 
r  8  ]  gi/(/,{d)  which  was  a  rate  set  down  upon  the  head  of  per- 
sons of  several  ranks;  and  if  any  of  tlieni  were  killed,  tlie 
offender  was  to  make  good  that  rate,  or  fVeregild  or  capitis  sestima- 
iio,  to  the  kindred  of  the  party  slain;  or,  as  some  think,  part  to  the 
king,  part  to  the  lord  of  the  fee  and  part  to  the  relations  of  the  party 
slain ;  which  if  he  conid  not  do,  lie  was  to  suffer  death. (e)  Vide 
Spelrn.  in  Gloss,  ad  verba  IVe^'a  Sf-  Weregild. 

This  custom  continued  long,  even  to  the  time  o{  Hen.  I.  here  in 
Englatid,  as  appears  by  his  laws  in  libro  rubro,  sect.  ll.(/)  but 
shortly  after  grew  obsolete,  as  being  too  much  contradictory  to  the 
divine  law.(^)      Vide  Covarr.   Tonio  2  Lib.  11.  cap.  9.  sect.  2. 

{d)  This  Weregild  or  capitis  cBstimatio,  according'  to  the  laws  of  Ethelbei-t,  was 
usually  100s.  Lag.  Ethelhert,  I.  21.  though  in  some  particular  cases  it  was  more,  I.  5.  6. 
22.     If  tlie  slayer  escaped,  the  relations  were  to  pay  half  the  ordinary  Weregild,  I.  2.3. 

By  the  laws  of  Ina  the  Weregild  was  different  according  to  the  rank  and  degree  of 
the  person  killed,  of  a  man  worth  200s.  was  30s.  of  a  man  worth  600s.  was  80s.  of  a 
man  worth  1200s.  was  120s.  Leg.  Ina.  I.  70.  This  rule  admitted  of  some  exceptions,  I, 
34.  /.  74. 

By  tlie  laws  of  Alfred,  the  bare  attempt  on  the  king's  life  was  punished  with  death, 
unless  the  offender  redeemed  it  by  the  payment  of  the  king's  weregild:  the  same  law 
was  in  case  a  slave  attempted  the  life  of  his  lord,  unless  he  redeemed  it  by  paying  his 
lord's  weregild.  Leg.  Alfred.  I.  4.  the  weregilds  were,  of  the  same  value,  as  under  Lia. 
Leg.  Alfred.  I.  9.  /.  26. 

By  the  league  between  Alfred  and  Guthrun,  I.  2.  the  value  of  a  common  person  was 
200s.  the  same  by  the  league  between  Edward  and  Guthrun  in  fine. 

By  the  laws  of  Athelstan,  whoever  should  attempt  his  lord's  life,  was  to  be  put  to 
death,  and  there  is  no  nienlion  made  of  any  ransom.  Leg.  Athelstan,  I.  4.  but  at  the  end 
of  his  laws,  and  of  the  Judicia  Civitatis  Lundoni<B,  there  is  a  particular  account  of  the 
weregilds  of  all  orders  and  degrees,  from  the  king  to  the  peasant,  for  which  see  Wilkin''s 
Leg.  Angln-Sax.  p.  64.  p.  71.     Turner'' s  Anglo-Saxons, 

By  the  laws  of  Ethelred,  I.  5.  the  iveregild  of  a  common  person  was  increased  to  25 
pounds.     By  /.  8.  Gul.  Conq.  apud  Wilkins''s,  p  221.  it  was  twenty  pounds. 

By  the  laws  of  Cnute,  whoever  siiould  lie  in  wait  for  the  life  of  the  king,  or  of  his  lord, 
was  to  suffer  death,  and  forfeit  all  he  had.  Leges  Cnuti,  I.  54.  Whoever  committed  a 
public  notorious  murder,  was  likewise  to  suffer  death,  without  redemption:  for  in  I.  61. 
Ccedes  publicu  Sf  domini  proditio  are  reckoned  amongst  the  scfZe/Yi  inexpiubilia  ;  but  it 
should  seem  that  common  homicide  was  redeemable;  for  in  /.  6.  it  is  said,  Homicides 
inclincnt,  vel  cmendent,  vel  scienter  in  pcccatis  morianiiir. 

(f)  The  wertgild  was  usually  divided  into  three  parts:  the  first,  which  was  called 
Frith  Bole,  was  |)aid  to  the  king  for  the  loss  of  his  suli)jcct;  the  lord  had  another  for  the 
loss  of  his  man,  which  was  called  Man-bote,  and  the  kin  of  the  slain  for  their  loss  had 
the  third  part,  which  was  called  Mag-bote.  See  Spelrn.  life  of  Alfred,  Book  II.  §  11,  In 
the  case  of  killing  the  king,  besides  the  weregild,  which  was  to  be  paid  to  the  king's 
relations,  there  was  also  another  payment  called  cynebot  or  cijnegild,  to  be  made  to  the 
public  for  the  lf)ss  of  their  king. 

(/)  And  §  12.  see  Wilkin''s  leges  Anglo  Sax.  p.  244.  But  it  appears  from  the  same 
laws,  /.  71.  ibid.  p.  267.  liiat  a  malicious  murder,  by  poison  or  the  like,  was  factum  mor- 
tifcrnm  nulla  niodo  redimendum.  Tlie  genuineness  of  these  laws  is  justly  questioned, 
for  that  ihey  not  only  are  in  the  nature  of  commentaries  rather  than  laws;  but  also  in 
I.  5.  Gr/gori/''s  decretals  are  cited,  which  were  not  compiled  till  fifteen  years  after  the 
death  of  Henri/  I  ,  however,  they  are  allowed  to  be  very  ancient,  and  to  contain  the 
usages  of  the  Anglo-Saxons.     See  llickesii  Dissert.  Epist.  p.  96. 

(g)  It  cannot  but  seem  strange  to  us  at  this  time  of  day,  that  the  wilful  murder  of 
any  one,  much  more  of  the  king,  should  be  punished  only  with  a  pecuniary  mulct;  to 
solve  this  difficullv,  Mr.  Kapin  siijjposes  that  this  commutation  was  allowed  only  in  the 
case  of  simple  homicide;  or  at  most  what  is  now  known  by  the  name  of  manslaughter, 


HISTORIA  PLACITORUM  CORONJ^.  8 

But  althongh  the  custom  of  fVere^ild  is  ^hrogdited  here  in  Eng- 
land, and  by  the  laws  of  this  kingdom  the  punishment  of 
homicide  is  regularly  death,(^)  as  shall  hereafter  be  sliovvn;   [    9    ] 
yet  since  there  are  in  England  two  kinds  of  proceedings  in 
punishing  of  homicide,  the  one  at   the  suit  of  the  heir  or  wife  by 
appeal, [1]  the  other  at  the  suit  of  the  king  by  indictment,  the  capi- 

but  not  in  the  case  of  a  premeditated  murder :  See  Rapin's  Histnire  (P  AngJeterre,  Vol.  I. 
p.  500.  This  notion  is  in  itself  reasonable,  and  seems  to  be  favoured  by  /.  4.  of  Athel- 
stan,  and  I.  54.  of  Cnute,  which  makes  it  capital  barely  insidinri  regi  tel  domino,  much 
more  to  take  away  the  life  of  the  king  or  his  lord;  but  on  llie  otlier  hand  it  seems  some- 
what  liard  to  suppose,  that  among  so  many  laws  against  homicide,  they  should  all  be 
levelled  against  casual  or  sudden  killing  only,  and  scarce  any  against  wilful  murder. 

(h)  The  offender  is  to  be  hanged  by  the  neck  till  he  be  dead ;  and  i:i  case  he  was  con- 
victed on  an  appeal,  the  ancient  usage  was,  that  all  the  relations  of  the  slain  should  drag 
him  with  a  long  rope  to  the  place  of  execution.  3  Co.  Inst.  131.  Flowd.  306,  b.  11  Hen. 
4.  12.  a. 

[I]  Many  cases  of  appeal  are  to  be  found  in  the  old  books,  but  by  the  59  Geo.  3,  c.  46, 
it  is  enacted,  that  it  shall  thenceforth  not  be  lawful  for  any  person  to  sue  an  appeal  for 
treason,  murder,  felony,  or  other  offence;  any  law  or  usage  to  tiie  contrary,  notwithstand- 
ing. 4  Step.  Coram.  385. 

In  1818,  58  Geo.  3,  the  case  of  Ash  ford  v.  Thornton,  1  B.  &  Al.  405,  was  argued  and 
determined  in  the  King's  Bench.  I'he  writ  of  Appeal,  and  the  return  thereto,  were 
annexed  to  the  sheriff's  return  of  tlie  writ  of  Habeas  Corpus,  and  will  be  found  printed 
on  p.  406.  The  coufit  in  appeal  will  also  be  found  on  p.  407.  Some  curious  proceedings 
are  recorded;  thus,  "The  appellee  being  brought  into  court  and  placed  at  the  bar,  and 
tiie  appellant  being  also  in  court,  the  count  was  read  over  to  him,  and  he  was  called  upon 
to  plead.  He  pleaded  as  follows:  'Not  guilty;  and  I  am  ready  to  defend  the  same  by 
my  body.'  And  thereupon  taking  his  slave  off,  he  threw  it  upon  the  floor  of  the  Court." 
The  pleadings  are  fully  stated  in  the  Report,  in  which  all  the  facts  and  circumstances 
are  narrated  and  set  forth,  until  the  parties  reach  a  general  demurrer.  This  demurrer 
was  argued  by  the  most  distinguisiied  special  pleaders  of  the  time.  Chitty  supported  the 
demurrer,  in  an  elaborate  and  exhausting  argument;  and  Tyndal,  (then  Special  Pleader 
under  the  Bar,  afterwards  Lord  Chief  Justice  of  the  Common  Pleas,)  opposed  him  in  an 
argument  equally  elaborate  and  learned.  Lord  Ellenhorovgh,  C.  J.,  delivering  the  opi- 
nion of  the  Court,  said,  "The  general  law  of  the  land  is  in  favour  of  tlie  wager  of  battel, 
and  it  is  our  duty  to  pronounce  the  law  as  it  is,  and  not  as  we  may  wish  it  to  be.  What- 
ever prejudices,  therefore,  may  justly  exist  against  this  mode  of  trial,  still,  as  it  is  the  law 
of  the  land,  the  court  must  pronounce  judgment  for  it." 

Sir  Samuel  Shepherd,  the  Attorney  General,  immediately  introduced  a  Bill  in  Parlia- 
ment, to  abolish  appeals  of  murder  and  wager  of  battel,  which  may  be  found  in  the  25 
Vol.  Statutes  at  Large,  59  Geo.  3.  c.  46.  22d  June,  1819. 

It  may  be  mentioned  in  connexion  with  this  case  of  Thorntori's  Appeal,  that  it  was  the 
first  occasion  on  which  tlie  late  Chief  Justice,  Sir  Nicholas  Tyndal,  of  the  Court  of  Com- 
mon Pleas,  greatly  distinguished  himself  His  very  learned  argument  gave  rise  to  the 
Act  mentioned  above  for  abolishing  that  barbarous  and  absurd  mode  of  trial.  Land.  Law 
Review  for  Aug.  1846,^.  436.  MS.  Sum.,  Tit.  Appeal  of  Death.* 

*  This  reference  is  to  a  MS.  interleaved  copy  of  Holers  Summary,  from  the  library  of 
the  late  Sir  William  Alexander,  Chief  Baron  of  the  Exchequer,  furnished  to  the  editors 
by  IIenrv  J.  Williams,  Esq.,  of  Philadelphia.  Mr.  East,  in  the  Introduction  to  the  first 
edition  of  his  I'lens  of  the  Crown,  mentions  his  reference  to  this  work  among  other 
authorities  of  like  character — "Lord  Hale's  Summary,  interleaved  with  MS.  corrections 
and  additions.  This  MS.  compilation,  though  began  before,  (probably  by  Mr.  Slow,  a 
gentleirtan  of  the  bar,)  was  put  into  its  present  form  by  Mr.  Justice  Yates,  who.«e  son  is 
now  in  possession  of  it.  Copies  of  it  were  communicated  to  different  judges,  w)io  have 
contributed,  from  time  to  time,  the  fruits  of  their  own  experience.  My  own  copy  was 
taken  from  one  in  the  possei»sion  of  the  late  Mr.  Justice.  Buller.  The  work  was  bound 
up  in  three  volumes,  according  to  which  I  have  cited  it  by  the  description  1,  2  &  3  MS, 
Sum."  1  East  P.  C.  Introduction,  p.  15,  London  ed.  1603. 


9.  HISTORIA  PLACITORUM  CORONiE. 

tal  punishment  of  the  offender  may  be  discharged  by  all  parties  inte- 
rested, namely  by  the  appellant  by  release,  and  by  the  king  by  his 
pardon. 

.And  thus  far  touching  the  punishment  of  homicide. 

Now  I  shall  consider  somewhat  also  of  the  punishment  of  theft^ 
and  the  various  laws  and  usages  concerning  the  same  in  several 
kingdoms  and  states,  and  at  different  times  in  the  same  state  or 
kingdom. 

By  the  Jewish  law,  Exod.  xxii.  1,  4.  "If  a  man  steal  an  ox  or  a 
sheep,  and  sell  or  kill  it,  he  shall  restore  five  oxen  for  an  ox,  and 
four  sheep  for  a  sheep:  If  the  theft  be  found  in  his  hands  alive,  whe- 
ther ox,  ass,  or  sheep,  he  shall  restore  double;"  and  the  like  for  other 
goods ;(«■)  so  that  there  was  no  capital  punishment  in  case  of  theft, 
though  it  were  accompanied  with  burglary,  as  breaking  a  house, 
but  men-stealers  were  punished  with  death  ;(A')  but  it  seems  by  the 
civil  constitutions  of  that  state  the  punishment  thereof  was  sometimes 
enhanced,  at  least  in  some  circumstances,  sometimes  to  a  seven-fold 
restitution,  Prov.  vi.  31,  and  also  to  death,  2  Sam.  xii.  5.(/) 

Now  as  to  the  Attic  laws  :  Samuel  Petit  de  LegibiisJitticis,  Lib. 
VII.  tit.  5.  gives  us  an  account  of  their  laws  concerning  theft,  in 
some  things  differing,  in  some  things  agreeing  with  the  Jewish 
r  10  []  ]ci\vs,fu7'em  cujusci/nque  modi  furti  supplicio  capitis  pu- 
nito.  This  was  Dracoes  law ;  but  it  was  thought  too  severe, 
and  therefore  Solon  corrected  it;(m)  Si  furtum  factum  sit,  &  quod 
furto  perierat  receperit  dominus,  duplione  luito  furtum  qui  fecit  & 
quorum  ope  consiiloque  fecit ;  decuplione  vindicator,  ni  dominus  rem 
furtivam  receperit,  in  nervo  quoque  habetor  dies  ipsos  quinque  toti- 
demque  noctes,  si  heliastse  pronunciarint ;  pronuncianto  autem,  cutu 
de  poena  illius  agitur. 

Si  lucri  furtum  cujus  ssstimatio  sit  supra  50  drachmas  faxit,  ad  un- 
decim  viros  rapitor ;  si  nox  furtum  faxit,  si  im  ahquis  occisit,  jure 
caesus  esto: — Manifestum  hujusmodi  furtum  qui  faxit,  etiamsi  vades 
dederit,  non  noxae  factae  sarcitione,  sed  morte  luito.  Si  quis  item  ex 
aliqno  gymnasio  yestis  aut  lecythi  aut  alicujus  vel  minimas  rei,  aut 
supellectiiis  e  gymnasio,  aut  ex  balineo,  aut  e  portubus,quod  excedat 
10  drachmarum  aestimationem,  furtum  faxit,  morte  luito. 

Manifesti  saccularii(;i)  morte  luunto. 
"  Vecticularii(o)  manifesti  morte  luunto. 

(t)  Exod.  xxii.  7,  9.  The  reason  why  the  restitution  of  an  ox  was  more  than  of  a 
sheep  is  supposed  by  Maimonides  more  NiDochiin  Far.  III.  cap.  41,  to  be  because  sheep 
are  more  easily  guarded  against  thieves  than  oxen,  who  feed  at  a  greater  distance  one 
from  another. 

(A)  Exod.  xxi.  IG. 

(/)  This  passage  from  the  bonk  of  Samuel  does  by  no  means  prove  what  it  is  brought 
for,  viz.  tliat  thutl  was  punishable  with  death  by  the  Jewish  law;  for  tiie  ease  there  put 
of  taking  away  a  poor  man's  lamb,  was  attended  with  violence  and  other  aggravating 
circumstances,  which  provoked  king  David  to  say,  The  mun  that  hath  done  this  shall 
surelij  die;  and  some  render  the  words,  Does  deserve  to  die;  but  at  most  it  only  proves 
tlie  vehemence  oi'  David's  anger  at  the  man,  and  not  what  was  the  law  of  the  Israelites, 

(m)  Sec  A.  Geliium,  Lib.  XI.  cup.  18.  4'  I'lutarch,  in  Vila  Solonis. 

(n)  B^xavT/cTc^i&'r,  A  cut-purse. 

C)  Tc/;^a'gy;^;a)ir,  A  house-breaker. 


HISTORIA  PLACITORUM  CORON:^.  10 

Plagiarii(/?)  manifesti  morte  luunto. 

In  hortQS  irrumpere  ficosque  deligere  capital  esto  \{q)  So  that  the 
quantity  of  the  thing  stolen,  the  place,  the  season,  the  manner  and 
other  circumstances  heightened  theft  into  a  capital  punishment,  that 
otherwise  by  Solon's  laws  was  only  pecuniary  and  imprison- 
ment.(r) 

Now  as  to  the  Roman  laws:  For  a  theft  that  was  not 
furfum  man ifestum,  {here  is  given  actio  in  duplum;  but  if  ['11  ~\ 
it  \verefu?'tuni  manifestum,  actioin  quadj'uptmn ;[s)  fur- 
lum  antem  rnanifesfum  est,  cum  fur  deprehenditur  infurto.{t) 

But  now  as  to  punishments  among  the  Romans,  there  were  these 
degrees  or  orders:  I.  Capital  punishments,  {viz.  ultimum  suppli- 
ciuni){ii)vfh'\c\\  were,  1.  Damnatioadfurcam.  2.  Plvi  crematio. 
3.  Capitis  amputatio.  4.  Damnatio  ad  /eras.  11.  Others,  that 
were  in  the  next  degree,  were,  1.  Coercilio  ad  metalla.  2.  Depor- 
tatio  ad  itisu/as.  III.  Others  again  of  a  lower  allay  were,  1.  Reie- 
gatio  ad  tempiis  vel  in  perpetuum.  2.  Datio  in  publicum  opus, 
3.  Fustigatio.{x) 

I  find  not  among  the  Romans  any  greater  punishment  of  theft, 
than  four-fold  restitution(3/)  unless  in  these  cases: 

1.  Si  quis  ex  metallo  principis  vel  ex  moneta  sacra  furatus  est, 
poena  metalli  &  exilii  punitor.(z) 

(/))  'AviTgJtTccf/s-c^siisc,  Sive  Plagiarius,  is  est,  qui  sine  vi,dolomalosciens  abducit  homines 
liberos  &  ingenuos,  venditque  pro  servis,  aul  suppremit:  vel  is  est,  qui  alienos  servos 
abducit  sine  vi,  &  plerumque  sinfe  furto,  &,  fugam  persuadet,  aut  fugltivos  celut.  Petit, 
Comment,  ad  Lib.  VII.  tit.  5,  defurtis, 

(9)  But  this  was  a  temporary  law,  made  in  a  time  of  dearth,  when  it  was  thought 
necessary  to  prohibit  the  exportation  of  figs.  However,  prosecutions  of  offenders  against 
this  law  soon  grew  odious;  from  hence  all  malicious  informers  were  called  Sycophants. 
Vide.  AthencBi  Deipnosophist.  Lib.  III.  S^  Scholiast,  ia  Aristophanis  Flutum  ad  »^31. 
4-874. 

(r)  Among  the  Lacedamoniavs  all  manner  of  theft  was  permitted,  as  a  practice  which 
tended  to  instruct  their  youth  in  the  stratagems  of  war.  A.  Gel.  Lib.  XI.  cap,  18.  It 
was  also  unpunished  among  the  ancient  Egyptians.  A.  Gel.  ubi  supra.  But  we  learn 
from  Diodor.  Sic.  Lib.  I.  that  it  was  allowed  only  on  certain  conditions,  for  it  was  pro- 
vided by  a  law,  that  whoever  was  minded  to  follow  the  trade  of  thieving,  should  first 
enter  his  name  with  the  captain  of  the  gang,  and  should  bring  in  all  his  booty  to  him, 
that  so  the  right  owner  might  know  where  to  apply  for  the  recovery  of  his  goods,  which 
were  restored  to  him  on  paying  the  quarter  of  the  value, 

(s)  Inst.  Lib.  IV.  tit.  6.  §.  5.  Diges.  Lib.  XLVII.  tit.  2.  defurtis,  I.  46.  §.  2.  Herein 
the  Roman  law  greatly  resembled  the  Jewish,  with  this  difference  that  by  the  Jewish]a.\v 
the  punishment  of  fourfold  was  to  be  instead  of  restitution;  whereas  by  the  Roman  law 
the  tiling  stolen  was  recoverable  over  and  above  the  j^o^na  quadrupli.  Dig.  eod.  tit.  I, 
54.  §.  3. 

(t)  Dig.  eod.  tit.  I.  2.  I.  3.  pr.  By  tjiis  was  meant  not  only  if  he  was  taken  in  the  fact, 
but^also  if  he  was  apprehended  with  the  goods  upon  him  before  he  had  carried  tliem  to 
the  place,  where  they  were  to  remain  that  night,  and  answers  to  the  expression  in  our 
law,  of  being  taken  in  the  mainoiivre. 

(u)  Dig.  Lib.  XLVIII.  at.  19.  de  poenis.  I.  21. 

(x;  Dig.  eod.  tit.  I.  28.  pr.  §.  1.  Z.  1 1.  §.  3. 

(y)  So  far  were  the  Romans  from  inflicting  capital  punishments  for  theft,  (hat  on  the 
contrary  it  was  expressly  forbidden  by  Justinian,  that  any  person  should  be  put  to  death, 
or  sutr.T  the  loss  of  member  for  theft.     Novel  CXXXIV.  cap.  tilt. 

(z)  Dig.  Lib.XLVlU.  tit.  13.  ad  leg.  Jul. peculatusj.  6.  §.  2.  Lib.  XLVIII.  tit.  ld.de 
pcenis  I.  38. 

VOL.  I. — 2 


11  HISTORIA  PLACITORUM  CORONyE. 

2.  Grassatores  qui  cum  ferro  aggredi  &  spoliare  instituunt,  capite 
piiijinutor.(^/) 

3,  Famosi  latrones  ad  bestias  vel  furcas  damnantor.  Digest,  de 
pcenis.{b) 

If  we  come  to  the  laws  and  customs  of  our  own  kingdom,  we  shall 
find  the  punishment  of  theft  in  several  ages  to  vary  according  as  the 
offence  grew  and  prevailed  more  or  less.(c) 

Among  the  laws  of  king, /^Me/.v/«;i,  mentioned  by  Bramp- 
[  12  ]]  /on, /7.  849,  852,  S54.  Non  parcatiir  ulicni  lalroni  supra 
12  unnos  «5'  supra  \2d.  quin  occidatur.{d)  Edmund  his 
successor,*  prsecepit  ne,  infra  15  annos,  vel  pro  latrncinio  infra 
12 d.  occidatur,  nisifugerit,  vel  se  defcnderit :  Malmsbury  tells  us, 
that  in  the  time  of  William  I.  theft  was  punished  with  castration, 
and  loss  of  eyes;(e)  but  iu  the  time,  of  Henry  I.  the  ancient  law, 
which  continues  to  this  day,  was  t</ 5/(7^/5  in  furlo  vel  latrocinio 
deprekensus  fuerit  suspenderetur.{f)[2'\ 

(a)  Dig.  eod.  lit.  I.  28.  §.  10.  (b)  Dig.  eod.  tit.  I.  28.  §.  15. 

(c)  By  the  laws  of  Ethclbert,  if  one  man  stole  any  thing  from  anotlier,  he  was  to  restore 
three  fold,  besides  a  fine  to  the  king,  l.  9.  If  he  stole  any  thing  from  the  king,  he  was  to 
restore  nine-fold,  Z.  4.  -  • 

By  tlie  laws  of  Ina  a  thief  was  punished  with  death,  unless  he  redeemed  his  life  capitis 
esthnatione  I.  12.  which  was  COs.  I.  7.  but  if  a  villain,  who  had  been  often  accused,-should 
be  taken  in  a  theft,  he  was  to  have  a  hand  or  foot  cut  off,  I.  18. 

By  the  laws  o?  Alfred  whoever  stole  a  mare  with  tiie  foal,  or  a  cow  with  the  calf,  was 
to  pay  40s.  besides  the  price  of  the  mare  or' cow,  I.  16.  Whoever  stole  any  thing  out  of 
a  church,  was  to  pay  the  value,  and  a  fine  according  to  the  value;  and  also  was  to  have 
that  hand  cut  off,  which  committed  the  fact,  I.  6.  If  any  person  committed  a  tlieft  die 
Dominico,  or  any  other  great  festival,  he  was  to  pay  double  I,  5. 

{d)  By  the  first  law  o'i  Athelstan  it  was  but  Qd,  Wilkins  leges  Anglo-Sax.  p.  56.  but 
afterwards  by  the  laws  of  tiie  same  king,  enacted  at  London,  and  thence  called  judicia 
civilatis  Lundonicc,  no  one  was  to  be  put  to  death  for  a  theft  under  12(/.  Ibid.  p.  65.  But 
in  case  the  tliief  fled,  or  made  resistance,  then  he  might  be  put  to  death, .tiiough  it  were 
under  that  value.  Ibid.  p.  70.  By  the  law  of  Caute  theft  was  punished  with  death.  Ibid, 
f.  134.  Z.  4.  and  p.  143. /.  Gl. 

(*)  Tiiis  is  a  mistake,  for  no  such  law  is  found  among  the  laws  of  that  king,  but  it  is 
among  the  later  laws  o'iV\ng  Atlielstnn^Yide  Judicia  Civ,  Land.  Wilk.  leg.  Anglo. Sax. p. 10. 

(e)  By  tiie  laws  of  William  I.  it  was  expressly  prohibited,  that  any  should  be  hanged  or 
pot  to  death  for  any  offence,  but  that  his  eyes  should  be  pulled  out,  liis  testicles,  hands 
or  feet  cut  oiF,  according  to  the  degree  of  his  crime,  I.  Ql.apud  Wilkins  Leg.  Anglo-Sax. 
p.  229.  p.  218. 

(/)  In  former  times,  though  the  punishment  of  theft  was  capital,  yet  the  criminal 
was  permiUed  to  redeem  his  life  by  a  pecuniary  ransom ;  but  in  the  Dth  year  of  Hen.  I. 
it  was  enacted,  that  whoever  was  convicted  of  theft  (or  any  other  felony,  3  Co.  Insl.it.  53.) 
should  be  hanged,  and  the  liberty  of  redemption  was  entirely  taken  away.  Wilk.  leg. 
Anglo-Sax.  p.  3U4.  This  law  still  remains  at  this  day  ;  but  considering  the  alteration  in 
the  value  of  money,  the  severity  of  it  is  much  greater  now  than  then,  for  \2d.  would  then 
purchase  as  much  as  40s.  will  now ;  and  yet  a  theft  above  the  value  of  12t/.  is  still  liable 
to  the  same  punishment;  upon  whicli  Sir  Hen.  SpeUnan  justly  observes,  that  while  all 
things  else  liave  rose  in  their  vulue  and  grown  dearer,  the  life  of  man  is  become  much 
cheaper.  SpeUn  in  vtrbo  lariciinu?n  ;  irom  hence  that  learned  author  takes  occasion  to 
wish,  that  the  ancient  tenderness  of  life  were  again  restored  Justum  certe  est,  ut  collapsa 
legis  tequitas  reslauretur,  &  ut  divinte  imaginis  vehiculum,  cpiod  superiores  pridem  jEtates 
ob  gravissima  crimina  ncfjuaquam  tollerent,  levioribus  hodie  ex  delictis  non  perdcrelur. 

[2]  This  is  no  longer  the  Law  of  England.  Mr.  Welsby  in  his  notes  to  4th  Blac. 
Comia.  Appendix  A.  gives  the  following  statement  of  oft'ences,  (now  1844,)  punishable 
with  death. 

High  Treason,  at  Common  Law. 

Murder,  9  Geo.  IV.  c.  31.  s.  3. 


HISTORIA  PLACITORUM  CORONA.  12 

And  although  many  of  the  scboohxien  and  canonists  are  of  opinion 
that  death  ought  not  to  be  inflicted  for  theft(o-),  yet  the  ne- 
cessity of  the  peace  and  well  ordering  of  the  kingdom  hath  [  13  ] 
in  all  ages  and  hi  almost  all  countries  prevailed  against  that 
opinion,  and  aimexed  death  as  tlie  punishment  of  theft,  when  the 
offence  hath  grown  very  common  and  acoom|ianied  with  enormous 
circumstances,  though  in  some  places  more  is  left  herein  to  the  Arbi- 
trinin  Judicis  to  give  the  same  or  a  more  gentle  sentence  according 
to  the  quality  of  the  offence  and  ofiender,  than  is  used  in  England^ 
where  the  laws  are  more  determinate,  and  leave  as  little  as  may  be 
to  the  Jirbilriiim  Judicis.  See  the  case  disputed  learnedly  by  Co- 
varruvias  Tomo  2.  Lib.  II.  cap.  9.  §.  7. 

This  I  have  therefore  mentioned,  that  it  may  appear,  that  capital 
punishments  are  variously  appointed  for  several  offences  in  all  king- 
doms and  states :  and  there  is  a  necessity  it  should  be  so ;  for  regu- 
larly the  true,  or  at  least,  the  principal  end  of  punishments  is  to  deter 
men  from  the  breach  of  laws,  so  that  they  may  not  offend,  and  so  not 
suffer  at  all ;  and  the  inflicting  of  punishments  in  most  cases  is  more 
for  example  and  to  prevent  evils,  than  to  pimish.  When  offences 
grow  enormous,  freqnent  and  dangerous  to  a  kingdom  or  state,  de- 
structive or  highly  pernicious  to  civil  societies,  and  to  the  great  inse- 
curity and  danger  of  the  kingdom  and  its  inhabitants,  severe  punish- 
ments, even  death  itself,  is  necessary  to  be  annexed  to  laws  in  many 

{g)  Scntus  Sentent.  4.  distinct  154  qutest.  3.  Sylvester  in  Verba  furtum  3.  Not  only 
the  sclioolmen  and  canonists  were  of  this  opinion,  but  by  what  has  been  above  said,  it 
appears  likewise  to  have  been  the  sense  botl^of  the  Jew/sA  and  Roman  laws,  and  tliough, 
as  our  author  says,  the  principal  end  of  punishment  is  to  deter  men  from  offending,  yet  it 
will  not  follow  from  thence,  tliat  it  is  lawful  to  deter  them  at  any  rate,  and  by  any  means; 
for  even  obedience  to  just  laws  may  be  enforced  by  unlawful  methods.  Cic.  Epist.  15. 
ad  Brutum.  Est  prencs  modus,  sicut  rerum  reliquarum ;  and  again,  Lib.  I.  de  oJHciis.  Est 
enim  ulciscendi  S^-  puniendi  modus.  Besides,  experience  might  teach  us,  that  capital 
punishments  do  not  always  best  answer  that  end.  See  Grot,  de  jur.  bel.  &c.  Lib.  II.  cap. 
20.  §.  12.  n.  3. 

Administering  or  causing  to  be  taken  poison  or  other  destructive  thing  with  intent  to 
commit  murder.     1  Vict.c.  85.  s.  2. 

Stabbing,  cutting  or  wounding  with  intent  to  commit  murder.     Id.  ibid. 

Causing  any  bodily  injury  dangerous  to  life,  with  intent  to  commit  murder.     Id.  ibid. 

Buggery.     9  Geo.  IV.  c.  31.  s.  15. 

Robbery,  accompanied  with  stabbing,  cutting  or  wounding  of  the  person  robbed.  1 
Vict.  0.81.  s.  2. 

Piracy,  accompanied  with  an  assault  with  intent  to  murder  any  person  on  board  of,  or 
belonging  to  the  ship,  or  with  stabbing,  cutting,  or  wounding  of  such  person,  or  willi  any 
act  whereby  the  life  of  such  person  may  be  endangered.     Id.  c.  88.  s.  2. 

Burglary,  accompanied  with  an  assault  with  intent  to  murder,  or  with  stabbing,  cutting, 
wounding,  beating  or  striking  any  person  being  in  the  dwelling  hous^e.     Id.  c.  86.  s.  2. 

Maliciously  setting  fire  to  a  dwelling-house,  any  person  being  therein.  Id.  c.  89.  s.  2. 

Maliciously  setting  fire  to,  casting  away  or  destroying  any  ship  or  vessel  with  intent  to 
murder  any  person,  or  whereby  the  life  of  any  person  shall  be  endangered.     Id.  s.  4. 

Exiiibiling  any  false  light  or  signal  witii  intent  to  bring  any  ship  into  danger,  or 
maliciously  doing  any  thing  tending  to  the  immediate  loss  or  destruction  of  a  ship  in  dis- 
tress.    Id.  s.  5. 

Principals  in  the  second  degree,  and  accessories  before  the  fact  1o  the  felonies  above 
mentioned,  except  the  offence  of  buggery,  (see  9  Geo.  IV.  c.  31.  s.  31.)  are  alike  punish- 
able with  death.  See  9  Geo.  IV.  c.  31.  s.  3.  1  Vict.  c.  85.  s.  7:  c.  86.  s.  6;  c.  87,  s.  9: 
c.  83,  S.4;  c.  8J.  s.  11. 


13  HISTORIA  PLACITORUM  CORONA. 

cases  by  the  prudence  of  law-givers,  though  possibly  beyond  the  sin- 
gle demerit  of  the  offence  itself  simply  considered. 

Penalties  therefore  regularly  seem  to  be  juris  positivi,  ^-  nnn  na- 
/iira/is,as  to  their  degrees  and  applications,  and  therefore  in  different 
ages  and  states  have  been  set  higher  or  lower  according  to  the  exi- 
gence of  the  state  and  wisdom  of  the  law-giver.  Only  in  the  case  of 
murder  there  seems  to  be  a  justice  of  retaliation,  if  not  ex 
r  14  1  lege  naturali,  yet  at  least  by  a  general  divine  law  given  to 
all  mankind.  Gen.  ix.  6.  And  although  I  do  not  deny  but 
the  supreme  king  of  the  world  may  remit  the  severity  of  the  punish- 
ment, as  he  did  to  Cain,  yea,  and  his  substitutes,  sovereign  princes, 
may  also  defer  or  remit  that  punishment,  or  make  a  commutation  of 
it  upon  great  and  weighty  circumstances,  yet  such  instances  ought 
to  be  very  rare,  and  upon  great  occasions. 

In  other  cases,  the  lex  talionis  in  point  of  punishments  seems  to  be 
■purely  juris posilivi ;  and  although  among  the  Jewish  laws  we  find 
it  instituted,  Exod.  xxi.  24,  25.  "Eye  for  eye,  tooth  for  tooth,  hand 
for  hand,  foot  for  foot,  burning  for  burning,  wound  for  wound,  stripe 
for  stripe  ;"  yet  in  as  much  as  the  party  injured  is  living  and  capable 
of  another  satisfaction  of  his  damage,  (which  he  is  not  in  case  of 
murder,)  I  have  heard  men  greatly  read  in  the  Jewish  lawyers  and 
laws  afiirm,  that  these  taliones  among  the  Jews  were  converted  into 
pecuniary  rates  and  estimates  to  the  party  injured,  so  that  in  penal 
proceedings  the  rate  or  estimate  of  the  loss  of  an  eye,  tooth,  hand  or 
foot  was  allowed  to  the  person  injured,  viz.  the  price  of  an  eye  for 
an  eye,  and  the  price  of  a  hand  fot  a  liand,  «§'C.(/i) 


CHAPTER  II. 

CONCERNING    THE    SEVERAL    INCAPACITIES    OP    PERSONS,    AND    THEIR 
EXEMPTIONS     FROM    PENALTIES    BY    REASON    THEREOF. 

Man  is  naturally  endowed  with  these  two  great  faculties,  under- 
standing and  liberty  of  will,  and  therefore  is  a  subject  properly  capa- 
ble of  a  law  properly  so  called,  and  consequently  obnoxious  to  guilt 
and  punishment  for  the  violation  of  that  law,  which  id  respect  of 
these  two  great  faculties  he  hath  a  capacity  to  obey  :  The  consent  of 

the  will  is  that,  which  renders  human  actions  either  com- 
[  15  ]   mendable  or  culpable  ;  as  where  there  is  no  law,  there  is  no 

transgression,  so  regularly  where  there  is  no  will  to  commit 
an  offence,  there  can  be  no  transgression,  or  just  reason  to  incur  the 
penalty  or  sanction  of  that  law  instituted  for  the  punishment  of  crimes 
or  offences.  And  because  the  liberty  or  choice  of  the  will  presup- 
poseth  an  act  of  the  understanding  to  know  the  thing  or  action  chosen 
by  the  will,  it  follows  that,  where  there  is  a  total  defect  of  the  under- 
standing, there  is  no  free  act  of  the  will  in  the  choice  of  things  or 

Qi)  Maimonides  More  Nevocliim,  Pars.  III.  cap.  41. 


HISTORIA  PLACITORUM  CORONiE.  15 

actions.  Bat  general  notions  or  rnles  are  too  extravagant  and  un- 
determinate,  and  cannot  be  safely  in  their  latitnde  applied  to  all  civil 
actions;  and  therefore  it  hath  been  always  the  wisdom  of  states  and 
law-givers  to  prescribe  limits  and  bounds  to  these  general  notions, 
and  to  define  what  persons  and  actions  are  exempt  from  the  severity 
of  the  general  punishments  of  penal  laws  in  respect  of  their  incapacity 
or  defect  of  wilj. 

Those  incapacities  or  defects,  that  the  laws,  especially  the  laws  of 
England,  take  notice  of  to  this  purpose,  are  of  three  kinds. 

I.  Natural. 

II.  Accidental. 

III.  Civil  incapacities  or  defects. 
Tfie  natural  is  that  of //?/rt?icy. 
The  accidental  defects  are, 

1.  Dementia. 

2.  Casualty,  or  Chance. 

3.  Ignorance. 
The  civil  defects  are, 

1.  Civil  Subjection. 

2.  Compulsion. 

3.  Necessity. 

4.  Fear. 

Ordinarily  none  of  these  do  excuse  those  persons,  that  are  under 
them,  from  civil  actions  to  have  a  pecuniary  recompense  for  injuries 
done,  as  trespasses,  batteries,  tvoundings;  because  such  a  re- 
compense is  not  by  way  of  penalty,  but  a  satisfaction  for  [  16  |] 
damage  done  to  the  party:  but  in  cases  of  crimes  and  misde- 
meanors, where  the  proceeding  against  them  is  ad pce?ia?n,  the  law 
in  some  cases,  and  under  certain  temperaments  takes  notice  of  these 
defects,  and  in  respect  of  them  relaxeth  or  abatelh  the  severity  of  their 
punishments. 


CHAPTER  III. 

TOUCHING  THE  DEFECT  OF  INFANCY  AND  NONAGE. 

The  laws  of  England  have  no  dependence  upon  the  civil  law,  nor 
are  governed  by  it,  but  are  binding  by  their  own  authority ;  yet 
must  it  be  confessed,  the  civil  laws  are  very  wise  and  well  coniposed 
laws,  and  such  as  have  been  found  out  and  settled  by  wise  princes 
and  law-givers,  and  obtain  much  in  many  other  kingdoms  so  far  as 
they  are  not  altered,  abrogated,  or  corrected  by  the  special  laws  or 
customs  of  those  kingdoms,  and  therefore  may  be  of  great  use  to  be 
known,  though  they  are  not  to  be  made  the  rules  of  our  English 
laws;  and  therefore  though  I  shall  in  some  places  of  this  book,  and 
here  particularly  mention  them,  yet  neither  I,  nor  any  else  may  lay 
any  weight  or  stress  upon  them,  either  for  discovery  or  exposition 


16  HISTORIA  PLACITORUM  CORONA. 

of  the  laws  of  England,  farther  than  by  the  customs  of  England  or 
Acts  of  Parliament  they  are  here  admitted. 

As  to  this  business  touching  infancy,  and  how  far  they  are  capable 
of  the  guilt  or  punishment  for  crimes,  I  will  consider,  1.  What  the 
civil  laws  tell  us  concerning  the  same.  2.  What  the  common  laws 
of  England  have  ordained  touching  it,  and  wherein  these  agree, 
and  wherein  they  differ  touching  this  matter. 

The  civil  law  distinguishes  the  ages  into  several  periods 
£   17   ]  as  to  several  purposes. 

First,  The  complete  full  age  as  to  matters  of  contract  is 
according  to  their  law  twenty-five  years,(a)  but  according  to  the  law 
oi  England  iweniy -owe  yeQ.xs.{b)  -  . 

Seco)idly,  Bnt  yet  before  that  age,  viz.  at  seventeen  years,  a  man 
is  said  to  be  of  full  age,  to  be  a  procurator,(c)  or  an  executor •,(^/) 
and  with  that  also  our  law  agrees.     5  Co.  Bejj.  Pigol's  case.(e). 

.  Thirdly.  As  to  matrimonial  contracts,  the  full  age  of  consent  in 
males  is  fourteen  years,  and  of  females  twelve  ;(/)  till  that  age  they 
are  said  to  be  impnberes,{g)  and  are  not  bound  by  matrimonial  con- 
tracts;  and  with  this  also  our  law  agrees. (A) 

Fourthly.  As  to  matter  of  crimes  and  criminal  punishments,  espe- 
cially that  of  death,  they  distinguish  the  ages  into  these  four  ranks. 

1.  JEtas  pubertatis  plena. 

2.  ,/Etas pubertatis. 

3.  JEtas  puberlati proxima. 

4.  Infantia. 

1.  Pubertas plena  is  eighteen  years.(/) 

2.   Pubertas  generally,  in  relation  to  crimes  and  punish- 

[  18  ]   ments,  is  the  age  of  fourteen  years  and  not  before;(/*?)  and  it 

seems  as  to  this  purpose  there  is  no  difference  between  the 

(ff.)  Institut.  Lib.  I.  tit.  2,  3.  De  Curatoribus.  Dig.  Lib.  IV.  tit.  4.  de  Minoribus, 
I.  1.  Sfc. 

(b)  Li'.  §.  104.  Co.  Lit.  §.  103. 

(c)  Institut.  Lib.  I.  tit.  6.  Quibtis  ex  causis  jnanumittere  non  licet,  §.  5.  &l  7.  Dig.  Lib, 
III.  tit  1.  De  Postulando,  I.  i.  §.  3.  At  this  age  it  was  tiie  custom  among  the  Romans  to 
lay  aside  the  habits  of  children,  and  put  on  the  garments  of  men.  Val.  Max.  Lib. 
V.  cup.  4.  §  4.  Sueton.  Avgust.  cap.  8. 

(d)  See  Swinb.  of  Wills, /jar.  V.  §  1.  n.  6. 

(e)  It  is  quoted  in  Prince''s  case,  5  Co.  Rep.  29.  b.     Office  of  Executors,  p.  307. 

(/)  lastit.  Lib.  1.  tit.  10.  de  nuptiis  pr.  Dig.  Lib.  XXIII.  tit.  2.  de  ritu  nuptia- 
rum,  I.  4. 

is)  Institut.  Lib.  I.  tit.  22.  Quibus  modis  lutein  Jinitur.  pr.  Dig.  Lib.  XXVIII.  tit.  6. 
de  viilg.  Sf  pupil,  suhstitut.  I.  2.  Macroh,  Saturn.  Lib.  VII.  cap.  7. 

{hj  Co.  Lit.  §.  104.  At  the  same  age  they  were  perinitted  by  the  civil  law  to  make  a 
Testament.  Diiscst.  Lib.  XXVIII.  lit.  1.  Qui  testamenla  facere  possunt,  I.  5.  Institut. 
Lib.  II.  tit.  12.  Qiiibus  non  est  permissuni  facere  testamenlum,  §.  1.  Cud.  Lib.  VI.  tit.  22. 
Qui  tesiainenta  facere  possint,  vet  nol.  I.  4.  Tlie  common  law  seems  not  to  have  deter- 
mined precisely  at  what  age  one  may  make  a  testament  of  a  personal  estate,  it  is  generally 
allowed  that  it  may  be  made  at  the  age  of  eiglitcen.  Office  of  Executors,  p.  305.  Co.  Lit. 
8!).  b.  and  some  say  under,  for  the  common  law  will  not  protiibit  the  spiritual  coui;t  in 
such  cases.  Sir.  T/ios.  Jones,  Rep.  210.  1    Vern.  2,55.  2  Vern.  409. 

(i)  Disc.  Lib.  I.  lit.  7.  de  adoption.  I.  40.  §  1.  Instil,  eod  tit.  §  4,  Dig,  Lib.XLIl.tit.  1. 
de  re  judical.  I.  57.  Lib.  XXXIV.  tit.  1.  De  ulimenlis,  I.  14.  i,.  1. 

(i)  Dig.  Lib.  XXIX.  tit.  5.  de  Senatusconsulto  iSilaniano,  ^-c.  I.  1.  §.  32. 


HISTORIA  PLACITORUM  CORONA.  18 

male  and  female  sex;  at  this  age  they  are  supposed  to  be  doli capaces, 
and  therefore  for  crimes  although  capital,  committed  after  this  age 
they  shall  suffer  as  persons  of  full  age;(/)  only  by  the  constilutions 
of  some  kingdoms,  in  favour  of  their  age,  the  ordinary  punishments 
were  not  inflicted  upon  such  young  off'enders;  as  in  Spain,  not  unless 
he  were  of  the  age  of  seventeen  years.  Vide  Covar.  de  Matrinio- 
nio,  cap.  5.  §.  8.{m)  In  Relectione  ad  Clement,  cap.  Si  Furio.'>its.{n) 
By  the  ancient  law  among  the  Jews,  he  that  was  but  a  day  above 
thirteen  years,  was,  as  to  criminals  adjudged  in  virili  statu,  but  not 
if  under  that  age.(t) 

3.  JEtas  pubertati  proxima,  herein  there  is  great  difference 
among  \he  Roman  lawyers;  and  though  they  make  a  disparity  here- 
in between  males  and  females,  yet  I  think  as  to  point  of  crimes  the 
measure  is  the  same  for  both:  Some  assign  this  JEtas  pubertati 
proxima  to  ten  years  and  a  half;  others  to  eleven  yeajrs.(o)  If  they 
be  under  the  age  which  they  call  JEtas  pubertati  proxima,  they  are 
presumed  incapaces  doli,{p)  and  therefore  regularly  not  liable  to  a 
capital  punishment  for  a  capital  offence:  but  this  holds  not  always 
true;  for  according  to  the  opinion  of  very  learned  civilians,  before 
ten  years  and  a  half  they  may  be  doli  capaces,  and  therefore  it  must 
be  left  ad  arbitrium  jndicis  upon  the  circumstances  of  the  case;  yet 
with  this  caution,  Judex,  qui  ante  illam  getatem  arbitrari  debet  pue- 
rum  esse  proximum  pubertati,  maximis  adducendus  est  conjecturis, 
&  cautissime  id  aget,  ac  tandem  raro.  Covarr.  ubi  supra. (q) 
And  with  this  agrees  our  law,  as  shall  be  showed.  But  if  [  19  1 
the  offender  be  in  setate  pubertati  proxima,  viz.  according 
to  some  ten  years  and  a  half,  according  to  others  eleven  years  old, 
he  is  more  easily  presumed  to  be  doli  capax,  and  therefore  may 
suffer  as  another  man,  unless  by  great  circumstances  it  appear,  that 
he  is  incapax  doll.  But  this  hath  also  its  temperaments,  1.  By  ex- 
press provision  of  the  constitution  in  Codice  de  falsa  Monetd-:  "Im- 
puberes,  si  conscii  fuerint,  nullum  sustineant  detrimentum,  quia  setas 
eorum,  quid  videat  ignorat ;"  but  a  penalty  is  laid  upon  the  tutor.(r) 

2.  Though  setas  pubertati  proxima  is  regularly  presumed  Ca;r?«a: 
doli,  and  so  may  be  guilty  of  a  capital  offence. — Digest  Be  regulis 
juris. (s)  Pupillum,  qui  proximus  est  pubertati,  capacem  esse 
fumiidi,  yet  as  it  is  in  arbitriojudicis  to  judge  an  infant  within  ten 

il)  Dig.  Lib.  IV.  tif.  4.  de  mimribus,  I.  37.  ^.  1.  Lib.  XLVIII.  tit.  5.  ad  leg.  Jul.  de 
adult.  I.  36.  Cod.  Lib.  2.  tit.  35.    Si  adversus  delictum.  1. 1. 

(m)   Tom.  I.  p.  157. 

(n)  Par.  III.  §.  5.  Tom.  I.  p.  558. 

(+)  Seld.  de  Synedriis,  Lib.  II.  cap.  13.  §.  132. 

(o)  Tlie  prevailing  opinion  is,  that  the  males  are  pubertati  proximi  at  fen  and  a  half^ 
and  the  females  at  nine  and  a  half,  because  when  tliey  had  passed  the  middle  distance 
between  infancy  and  puberty,  they  might  then  be  properly  said  to  be  mtatis  pubertati 
proxima. 

(?)  Dig.  Lib.  XLVII.  tit.  12.  de  sepulchro  violato,  I.  3.  §.  1. 

(9)   Tom,  l.p.  157.  (r)  Lib.  IX.  tit.  24.  I.  4. 

(s)  Lih.'L.tit.ll.l  111,  Lift.  XXIX.  tit.  5.  de  Senatusconsulto  Silaniano.l.U.  Lib. 
yihW.  lit.  4.  de  doli  mnli  exccptinne,  I.  4.  §.  26.  Instit.  Lib.  IV.  tit.  1.  de  obligat.  qua 
ex  delicto,  §.  18.  Dig.  Lib.  XLVIII.  tit.  2.  defuriis,  I.  23. 


19  HISTORIA  PLACITORUM  CORONA. 

years  and  a  half  capax  doli,  as  before;  so  it  is  in  arhilrio  judicls 
upon  consideration  of  circumstance  to  judge  one  above  ten  years 
and  a  half,  nay  of  twelve,  thirteen  years,  or  but  a  day  within  four- 
teen years,  to  be  incapax  doli^  and  so  privileged  from  punishment, 
as  appearing  upon  the  circumstances  of  the  fact  not  yet  Qonstitulus 
in  Delate  proximd  pitbertati,  or  at  least  not  doli  capax;  and  with  this 
our  law  doth  in  a  great  measure  agree. 

3.  That  if  he  be  above  ten  years  and  a  half,  and  appears  doIi  ca- 
pax, yet  if  under  fourteen  years,  he  is  not  to  be  punished  poena  oi^di- 
narld,  but  it  may  have  some  relaxation  ex  arbilrio  jiidicis.{t)  But 
although  our  law  indulges  a  power  to  the  judge  to  reprieve  before 
or  after  judgment  an  infant  convict  of  a  capital  offence  in  order  to 
the  King's  pardon,  yet  it  allows  no  arbitrary  power  to  the  judge  to 
change  the  piniishment  that  the  law  inflicts;  and  thus  far  for  the 
third  age  or  period,  JEtas piiberlali  proxima. 

4.  The  fourth  age  or  period  is  infantia,  which  lasts  till  seven 
years;  within  this  age  there  can  be  no  guilt  of  a  capital  offence;  the 
infant  may  be  chastised  by  his  parents  or  tutors,  but  cannot  be  capi- 
tally  punished,   because   he  cannot  be   guilty;(7/)   and   if 

[]  20  ]  indicted  for  such  an  oftence  as  is  in  its  nature  capital,  he 
must  be  acquitted ;  and  therefore  the  severity  of  the  gloss 
upon  the  decretal  De  delictis  puerorum,  cap.  \.{x)  is  justly  rejected 
in  this  case  \[y)  and  with  this  agrees  the  law  of  England. 

But  now  let  us  consider  the  laws  of  England  more  particularly 
touching  the  privilege  of  infancy  in  relation  to  crimes  and  their 
punishments,  and  that  in  relation  to  two  kinds  of  crimes,  1.  Such  as 
are  not  capital.     2.  Such  as  are  capital. 

First,  As  to  misdemeanors  and  offences  that  are  not  capital:  in. 
some  cases  an  infant  is  privileged  by  his  non-age,  and  herein  the  pri- 
vilege is  all  one,  whether  he  be  above  the  age  of  fourteen  years  or 
under, -if  he  be  under  one  and  twenty  years;  but  yet  with  these  dif- 
ferences : 

If  an  infant  under  the  age  of  twenty-one  years  be  indicted  of  any 
misdemeanor,  as  a  riot  or  battery,  he  shall  not  be  privileged  barely 
by  reason  that  he  is  under  twenty-one  years,[l]  but  if  he  be  con- 
victed thereof  by  due  trial,  he  shall  be  fined  and  imprisoned  ;  and  the 
reason  is,  because  upon  his  trial  the  court  ex  ojficio  ought  to  consider 
and  examine  the  circumstances  of  the  fact,  whether  he  was  doli 
capax,  and  had  discretion  to  do  the  act  wherewith  he  is  charged ; 
and  the  same  law  is  of  a  femme  covert.  2.  But  if  the  oflence 
charged  by  the  indictment  be  a  mere  non-feasance,  (unless  it  be  of 
such  a  thing  as  he  is  bound  to  by  reason  of  tenure,  or  the  like  as  to 
repair  a  bridge,  <5*c.)(c)  there  in  some  cases  he  shall  be  privileged  by 

(0  Dig-  Lib.  IV.  t')t.  4.  de  minorilnis,  I.  37.  §.  In  delictis, 

(u)  iJifT.  Lib.  XLVII.  tit.  2.  de  furtis,  I.  23.  Ld,.  XLVIII.  tit.  8.  ad  les;.  Cornel,  de 
aicariis  l.  12.  {x)  Decretal.  Lib.  \.  til.  23.  (y)    3b/n.  l.p.  157. 

(2)  2  Co.  Inst.  70.3. 

[1]  See  4  Dl.  Com.  23.    1  Huss.  on  Crimes  2.  Co.  Litt.  274.  b. 


IIISTORIA  PLACITORUM  CORON^E.  20 

his   nonage,   if  under   twenty  one,   though   above  fourteen   years, 
because  Lnches  in  such  a  case  shall  no.t  be  imputed  to  him.(Q) 

36  E.  3.  Jlssis.  443.  4  //.  T.  11.  b.  If  an  infant  in  Assise  vouch  a 
record,  and  fail  at  the  day,  he  shall  not  be  imprisoned, (6)  nor  it  seems 
di  feme  covert.  13  Assis.  l.(c)  and  yet  the  statute  of  IVestminst.  2. 
cap.  25.  that  gives  imprisonment  in  such  a  case,  is  general. 

8  E.  2.  Corone  395.     l(  A.  kills  B.  and  C.  S,-  D.  are  pre- 
sent, and  do  not  attach(r/)  the  offender,  they  shall  be  fined    [  21  ] 
or  imprisoned;  yet  if  C.  were  within  the  age  of  twenty-one 
years,  he  shall  not  be  fined  nor  imprisoned. 

3.  Where  the  corporal  punishment  is  but  collateral,  and  not  the 
direct  intention  of  the  proceeding  against  the  infant  for  his  misde- 
meanor, there,  in  many  cases,  the  infant  uiider  the  age  of  twenty- 
one  shall  be  spared,  though  possibly  the  punishment  be  enacted  by 
parliament.  14  Jiss.  17.(e)  If  an  infant  of  the  age  of  eighteen  be 
convict  of  a  disseisin  with  force,  yet  he  shall  not  be  imprisoned. 
Vide  26  Ass.  9.  43  E.  3.  Imprisonment  16.  40  E.  3.  44.  a.{f)  and 
yet  a  feme  covert  shall  be  imprisoned  in  such  case.     16  Ass.  7. 

If  an  infant  be  convict  in  an  action  of  trespass  vi  <§•  armis,  the 
entry  must  be  nihil  de  fine,  sed  pardonatnr,  quia  infans ;  for  if  a 
cupiatur  be  entered  against  him,  it  is  error,  for  it  appears  judicially 
to  the  court,  that  he  was  within  age  when  he  appears  by  guardian. 
P.  8.  Jac.  B.  R.  Holbrooke  v.  Dogley,  Croke,  n.'3.;{g)  the  like  law 
is  that  he  shall  not  be  in  misericordia  pro  fa/so  clamore.(h) 

B.  Coverture  68.  General  statutes  that  give  corporal  punishment 
are  not  to  extend  to  infants,  and  therefore  Fl.  Com.  364,  a  per 
Walsh,  if  an  infant  be  convict  in  ravishment  of  ward,  he  shall  not  be 
imprisoned,  though  the  statute  of  I\ferto7i  cap.  6.  be  general  in  that 
case:(/)  but  this  nmst  be  understood  where  it  is,  as  before  said,  a 
punishment  as  it  were  collateral  to  the  offence,  as  in  the  cases  before- 
mentioned  :  but  where  a  fact  is  made  felony  or  treason, 
it  extends  as  well  to  infants,  if  above  fourteen  years,(/t)  as  [  22  ]] 
to  others,  as  shall  be  said.  And  this  appears  by  several 
acts  of  parliament,  and  particularly  by  I  Jac. cap.  11.  of  felony  for 
marrying  two  wives,  &c.  where  there  is  a  special  exception  of  mar- 
riages within  the  age. of  consent,  which  in  females  is  twelve,  in  males 

(a)  B.  Saver  default,  50.    Cro.  Juc.  465,  466.     PI.  Com.  364.  a.  Co.  Lit.  246.  6. 

(6)  2  Co.  liisti't.  414.  (c)  B.  Coverture  35.  Resceit  87. 

{d)  The  words  of  the  book  are  ne  leve  le  main  d^attach.  (e)  F.  Imprisonment  8. 

_  (/)  "  Et  le  cause  est,  pur  ceo  que  la  ley  eiitend',  que  un  enfant  ne  poit  my  conustr' 
bien  &,  mal'  ne  le  quel  foil  advant.iije  pour  luy,  ou  neiny  ;  ne  nul  foly  serra  adjudge  ea 
un  enfant."  Mes.  12.  H.  4.  22.  b.  Hank,  dit  que  enfant  d'age  de  18  ans  poit  estre  dissei- 
sor ove-force  &  estre  emprison  per  cella.  {g)  Cro.  Jac.  274. 

(/')  Co.  Lit.  127.  a.  yet  this  was  not  a  settled  point,  for  2.  E.  3.  5.  tiie  court  doubted 
of  it;  and  in  17  E.  3,  75.  6.  and  41  Assis.  14.  the  plaintiffs,  though  infants,  were  amerced 
pro  falso  clamore;  but  though  tiiey  were  amerced,  yet  it  appears  from  the  same  cases 
that  ihey  were  entitled  on  account  of  tlieir  infancy  to  a  pardon  of  course.  See  1  R.  A. 
214. 

(i)  Anotlier  like  case  is  there  put,  if  an  infant  be  a  receiver  and  account  before  audi- 
tors, and  be  found  in  arrears,  the  auditors  cannot  commit  him  to  prison  notwithstanding 
the  general  words  of  the  statute  of  W.  2.  cap.  11. 

{k)  Co.  Lit.  247.  6. 
VOL.    I. — 3 


22  HISTORIA  PLACITORUM  C0R0NJ5:. 

fourteen  years;  so  that  if  the  marriage  were  above  the  age  of  con- 
sent, though  within  the  age  of  twenty-one  )^ears,  it  is  not  exempted 
from  the  penalty. 

So  by  the  statnte  of  21  H.  S.  cap.  7.  concerning  felony  by  servants 
thai  embezzle  their  Tnasler^s  goods  delivered  to  them,  there  is  a  spe- 
cial proviso,  that  it  shall  not  extend  to  servants  under  the  age  of 
eighteen  years,  who  certainly  liad  been  within  the  penalty,  if  above 
the  age  of  discretion,  viz.  fonrteen  years,  though  under  eighteen 
years,  unless  a  special  provision  had  been  to  exclude  them.(/) 

I  come  therefore  to  consider  the  privilege  of  infancy  in  cases  of 
capital  offences  and  punishments  according  to  the  laws  oi  England, 
wherein  I  shall  examine,  1.  How  the  ancient  law  stood.  2.  How  it 
stands  at  this  day  in  relation  to  infants. 

I,  As  to  the  ancient  law: 

1.  By  what  has  been  before  said  it  appears  that  the  Civil  law  was 
very  uncertain  in  defining  what  was  tliat  setas  pubertati  proxima, 
and  consequently  such  as  might  subject  the  offender  to  capital  guilt 
or  punishment;  some  taking  it  to  be  ten  years  and  a  half,  some 
eleven  years,  others  more,  others  less.  The  laws  of  Engtund  there- 
fore, that  always  aflect  certainty,  determined  anciently  the  setas 
pubertati  proxima  to  be  twelve  years  for  both  sexes;  under  that 
age  none  could  be  regularly  guilty  of  a  capital  offeuce,  and  above 
that  age  and  under  fonrteen  years,  he  might  or  might  not  be  guilty 
according  to  the  circumstances  of  the  fact  that  might  induce  the 
court  and  jury  to  judge  liim  doli  capux,  vel  incapax.{m) 

This  appears  by  the  laws  of  king  Jithelstan  mentioned 
r  23  1  in  the  first  chapter,  "  Non  parcatur  alicui  latroni  super  12 
annos  &  supra  12  d.  quin  occidotur.'-'  And  although  his 
successor  Edmund{n)  reduced  it  to  fifteen  years,  unless  he  fled,  yet 
it  will  appear  that  the  standard  of  twelve  years  obtained  in  after 
ages.(o) 

2.  It  appears  that  an  infant  of  twelve  years  was  compellable  to 
take  the  oath  of  allegiance  in  the  leet,  and  under  that  age  none  were 
to  take  the  oalh,  or  to  do  suit  to  the  leet.     Bract.  Lib.  \\\.{p)  cap. 

(/)  The  like  exception  there  is  in  tlie  12  Ann.  cap.  7.  where  apprentices  under  the  age 
of  fiflren  years,  who  t-liall  rob  their  masters,  are  excepted  out  of  the  act. 

(?«)  By  the  laws  of  Ina,  I.  7.  an  infant  of  ten  years  of  age  might  be  guilty  of  being 
accessary  to  a  thcfl,  and  was  punished  accordingly  with  servitude.  \Mlk.  Leg.  Anglo- 
Sax,  p.  1 6.  ■  , 

(7j)  This  is  a  mistake,  for  it  was  not  Edmund  but  king  Alhiislan  himself,  who  think- 
ing it  a  piliable  case  tluit  a  youth  but  twelve  years  old  should  be  put  to  death,  as  was 
permitted  by  the  former  l.iw,  changed  tlic  time  from  twelve  years  to  rifteen,  and  ordered 
that  none  who  was  but  fifteen  years  of  age  should  be  put  to  death,  unless  he  resisted  or 
fled;  if  he  surrendered  himself,  hu  was  only  to  be  imprisoned  until  some  of  his  rela- 
tions or  friends  would  become  security  for  him  jiixia  pleufi7)i  capitis  (Estimationein,  ut 
semper  uli  unini  malu  ahslineal :  if  he  could  not  get  any  such  security,  then  lie  was  to 
take  an  o:ith,to  tiie  same  purpose  in  such  manner  as  the  liisliop  sliould  direct  him,  and 
was  to  rcinain  in  servitutc  pro  capitis  siii  astiuialionc ;  but  if  alter  this  he  should  be 
again  guilty  then  he  was  to  be  put  to  death  without  any  regard  to  his  age.  Sec  WHk. 
Lrpes  An:jlo-Siix.  p.lO. 

(o)  In  tl:c  time  of  king  Henry  I.  the  old  ^w  of  king  Athehtan  took  place,  viz.  twelve 
years  of  ago,  and  8c/,  valiiC.     I.id.p.2o'J. 

{p)  Dc  Corona.      ;  "  .  . 


HISTORIA  PLACITORUM  CORON.^.  23 

l.{q)  Britton,  cap.  29,  in  Jine,  Calvin's  case,  7  Co.  Ecp.  6.  h.  So 
that  at  that  age,  and  not  before,  he  was  taken  notice  of  by  the  law 
to  be  under  the  obligation  of  an  oath,  and  consequently  capable  of 
discretion. 

3.  The  ordinary  process  against  capital  offenders  was  and  is  by 
Capias  and  Exii^enl,  aiid  Vtlary  thereui)on;  but  against  an  infant 
under  twelve,  process  of  iitlary  in  cases  of  indictment  was  not 
awardable,  and  if  awarded,  it  was  error:  but  if  above  that  age,  that 
process  was  awardable;  and  Bract.  Lib.  Ill.(r)  cap.  11,  sect.  4  «5* 
5.  gives  the  reason,  "Elinor  vero,  qui  infra  astatetn  12  annorum 
fiicrit  utlegari  non  debet,  quia  ante  talem  setatem  non  est  sub  lege 
alitjua  nee  in  decenna  ;"  and  ibidem  cap.  10  sext.  1,  he  mentions  an 
old  law  of  k\\\2,  EdLvard,{s)  "Omnis,  qui  aitatis  12  annorum  fuerit, 
facere  debet  sacramentum  in  visd  franciplegii,  quod  nee  latro 

vult  esse,  nee  latroni  consentire;"  and  .Stamf.  Lib.  I.  cap.   []  24  ] 
19,  cites  out  of  a  book  of  Bracton,  De  Visit  Franci  plegii, 
"Quod  quilibetduodecini  annorum  potest  felonise  judicium sustinere," 
which  implies  also  that  within  that  age,  regularly  at  least,  he  could 
not  be  a  felon, 

4.  Again,  T.  32.  E.  I.  Hot.  32.  "  Eboracum,  coram  rege,  Adam 
filins  Adae  de  Arnhale  captus  noctanter  in  domo  Johannis  Somere 
coram  rege  ductus  cognovit,  quod  furtive  cepit,  &c.-  9s.  per  preceptum 
&  missionem  Richardi  Short :"  Richard  Short  had  his  clergy,  '■'  Et 
prasdictus  Adam  commissus  fuit  custodiae  mariscalli  custodiend',  quia 
infra  aetaten);  postea  habito  respectu  ad  imprisonamentum,  quod 
praedictus  Adam  habuit,  &  etiam  ad  teneram  a^tatem  ejusdem  Adas, 
60  quod  non  est  nisi  ajtatis  12  annorum,  qui  talis  setaiis  judicium 
ferre  non  potest,  ideo  de  gratia  regis  deliberetur,  &c,"  Upon  this 
record  these  things  are  observable,  viz.  1.  The  court  recorded  his 
confession;  but  regularly  that  ought  not  to  be,  for  if  an  infant  under 
the  age  of  twenty-one  shall  confess  an  indictment,  the  court  in  jus- 
tice ought  not  to  record  the  confession,  but  put  him  to  plead  not 
guilty,  or  at  least  ought  also  to  have  inquired  by  an  inquest  of  office 
of  tlie  truth  and  circumstances  of  the  fact,  2.  That  liere  he  was 
twelve  years  old,  and  yet  judgment  s[)ared,- and  the  reason  given,- 
(^ui  talis  setaiis  judicium  ferre  non  potest.  Yet  3.  There  is  some- 
what still  of  gratia  regis  interposed,  as  it  seems,  in  respect  he  was 
past  the  old  standard  of  twelve  years. 

U.  But  now  let  us  come  to  the  Common  law  as  it  stood  in  after- 

{q)  This  seems  to  be  a  mistake,  for  cap.  11.  sert.  4.  for  the  oath  mentioned  in  cap.  1. 
wiis  to  be  taken  by  knights  and  others  of  the  age  of  fifteen  years  and  upwards. 

(r)  De  Corona. 

((••J  There  is  no  such  law  extant  among  those  of  king  Edward,  biit  the  law  here 
quoted  is  a  law  of  Cnute,  Leg.  Cnuti,  I.  1!J.  which  is  in  tlicse  words,  Vuliimus  ut  quiU. 
Let  homo  \2  annos  iiatus  jiisjurandum  prceslet  se  nol'.e  fiirem  esse  neque  furi  consenta- 
nenm,  which  oath  is  to  the  same  purpose  witli  tliat  mentioned  by  Brnclon,  Lib.  iii.  de 
corona,  Clip.  1.  to  l)e  taken  at  the  age  of  fifteen  ;  and  though  there  be  a  difiVrcncc  as  to 
the  age,  yet  probably  it  is  tlie  same  oath,  for  it  is  very  easj'  and  natural  to  mistake  xii 
for  XV.  See  the  statute  of  Marlliridrre,  cap.  10.  i^-  25.  and  lord  Coke's  comment  thereon, 
2  Instil.  ,141.  where  he  takes  notice  that  the  old  books  are  misprinted.  See  also  2  InstiU 
72.     Mirror,  cap,  1,  §.  3.  Britlon,  cup.  12. 


24  HISTORIA  PLACITORUM  CORONA. 

times;  for  in  process  of  time,  especially  in  and  after  the  reign  of  king 
Edwitrd  III.  the  Common  law  received  a  greater  perfection,  not  by 
the  change  of  the  Common  law,  as  some  have  thought,  for  that  could 
not  be  but  by  act  of  parliament ;  but  men  grew  to  greater. learning, 

judgment  and  experience,  and  rectified  the  mistakes  of  for- 
j^  25  3   mer  ages  and  judgments,  and  the  law  in  relation  to  infants 

and  their  punishments  for  capital  offences  was  and  to  this 
day  is  as  foUoweth. 

1.  It  is  clear  that  an  infant  above  fourteen  and  under  twenty-one 
ia  equally  subject  to  capital  punishments,  as  well  as  others  of  full 
age ;  for  it  is  prsesumplio  jin^is,  that  after  fourteen  years  they  are 
doli  capaces,  and  can  discern  between  good  and  evil ;  and  if  the  law 
should  not  animadvert  upon  such  offenders  by  reason  of  their  nonage, 
the  kingdom  would  come  to  confusion.  Experience  makes  us  know 
that  every  day  murders,  bloodsheds,  burglaries,  larcenies,  burning  of 
houses,  rapes,  clipping  and  counterfeiting  of  money,  are  committed  by 
3'ouths  above  fourteen  and  under  twenty-one;  and  if  they  should 
have  impunity  by  the  privilege  of  such  their  minority,  no  man's  life 
or  estate  could  be  safe.(/)  In  my  remembrance  at  Thetfurd  a  young 
lad  of  sixteen  years  old  was  convict  for  successive  wilful  burning  of 
three  dwelling  houses,  and  in  the  last  of  them  burning  a  child  to 
death,  and  yet  had  carried  the  matter  so  subtilly,that  by  a  false  accu- 
sation of  another  person  for  burning  the  first  house  an  innocent  per- 
spn  was  brought  in  danger,  if  it  had  not  been  strangely  discovered: 
he  had  judgment  to  die,  and  was  accordingly  executed. (?/) 

Fourteen  years  of  age  therefore  is  the  common  standard,  at  which 
age  both  males  and  females  are  by  the  law  obnoxious  to  capital 
punishments  for  offences  committed  by  them  at  any  time  after  that 
age;  and  with  this  agrees  Fltz.  N.  B.  202.  b.{x)  Co.  Lilt.  §  405.(^) 
VideMw  Dallon^s  Justice  of  Peace,  cup.  95.  and  104.(z) 

2.  An  infant  under  the  age  of  fourteen  years  and  above 
r  26  ]]   the  age  of  twelve  years  is  not  prima  facie  presumed  to  be 

doli  capax,  and  therefore  regularly  for  a  capital  offence 
committed  under  fourteen  years  he  is  not  to  be  convicted  or  have 
judgment  as  a  felon,  but  may  be  found  not  guilty. [2] 

{t)  Our  aulhor'.s  arg-umcnt  concludes  very  strongly  against  tlicir  escajjingf  with  unpu. 
nity,  hut  loses  much  of  its  force  when  urged  in  behalf  of  capital  punishments,  for  there 
is  no  necessity  that  if  they  be  not  capitally  punisliedtiiey  must  therefore  go  unpunished; 
80  that  whatever  severity  may  be  needful  in  cases  of  murders  and  aets'of  violence,  yet  in 
tlie  common  instances  of  larceny  and  stealing,  some  other  punisiiment  might  be  found, 
which  niiglit  leave  room  for  tlic  reformation  of  young  offenders. 

((/■)  At  Abingdon  assizes,  l'\li.  23,  lG2i),  before  \\'hitlock  justice,  one  John  Dean,  an 
infant,  between  ciglit  and  nine  years,  was  indicted,  arraigned,  and  found  guilty  of  burn- 
ing two  barns  in  the  town  of  Windsor  ;  and  it  ajipcaring  ujjon  exaiiiinatiim  that  he  )iad 
malice,  revenge,  craft,  and  cunning,  he  had  judgment  to  lje  lianged,  and  was  hanged 
accordingly.     MS.  Report. 

(x)  N.  Edit.  p.  450.  (y)  ;j.  247.  b. 

{z)  'J'he  first  edition,  but  in  the  last  edition,  cap.  147  and  157. 

[2]  "  By  the  ancient  Saxon  law,  tiie  age  of  twelve  years  was  estabhshcd  for  the  ago 
of  possible  discretion  when  first  the  understanding  might  o|K'n;  and  from  thence  until 
the  offender  was  fourteen,  it  was  wtas  pubertuti  proxima,  in  whith  he  miglit  or  might 


HISTORIA  PLACITORUM  CORON.^.  26 

But  {hou2;h  prima  facie  and  in  common  presumption  this  be  true, 
y€t  if  it  appear  to  the  court  and  jury  that  he  was  f/oii  capax,  and 
could  discern  between  good  and  evil  at  the  time  of  the  offence  com- 
mitted, he  may  be  convicted  and  undergo  judgment  and  execution 

not  be  guilty  of  a  crime,  according-  to  his  natural  capacity  or  incapacity.  Ttiis  was  the 
dubious  stage  of  discretion ;  but  under  twelve  it  was  held  that  he  could  not  be  guilty  ia 
will,  neitlier  after  fourteen  could  be  supposed  to  be  innocent,  of  any  capital  crime  which 
he  in  fact  committed.  By  the  law  as  it  now  stands,  and  has  stood  at  least  since  the  time 
of  Edward  the  Third,  the  capacity  of  doing  ill,  or  contracting  guilt,  is  not  so  much  mea- 
surcd  by  years  and  days,  as  by  the  strength  of  the  delinquent's  understanding  and  judg- 
ment. For  one  lad  of  eleven  )'ears  old  may  have  as  much  cunning  as  another  of  four- 
teen, and  in  these  cases  our  maxim  is,  '  malitia  supple.l  (Btatem.''  Under  seven  years  of 
age,  indeed,  an  infiint  cannot  be  guilty  of  felony,  for  then  a  felonious  discretion  is  almost 
an  impossibility  in  nature;  but  at  eight  years  old  he  may  be  guilty  of  felony.  Also 
under  fourteen,  though  an  infant,  shall  be  prima  facie  adjudged  to  be  doli  incapnx;  yet 
if  it  appear  to  tlie  court  and  jury  that  he  was  doli  capax,  and  could  discern  between  good 
and  evil,  he  may  be  convicted  and  sutler  death."  4  Stephen's  Comrn.  75,  76.  4  Black. 
Cowm.  23.  2  Stephen's  Comrn.  331,  332.  Land.  Ed, 

The  case  cited  by  Blachslone  from  Foster,  70,  is  Yorke's  case,  and  is  deemed  an  im- 
portant  one  by  Sir  William  Russell,  (I  Russ.  on  Crimes,  4.)  It  was  this.  At  Bury 
Summer  Assizes,  1748,  Williarn  Yorke,  a  boy  of  ten  years  of  age,  was  convicted  before 
Lord  Chief  Justice  lV?7/?s  for  the  murder  of  a  girl,  of  about  five  years  of  age,  and 
received  sentence  of  death  ;  but  the  Chief  Justice  out  of  regard  to  the  tender  years  of 
the  prisoner,  respited  execution  till  he  should  liave  an  opportunity  of  taking  the  opinion 
of  the  rest  of  the  judges  whether  it  was  proper  to  execute  him  or  not  upon  the  special 
circumstances  of  the  case;  on  which  he  reported  to  the  judges  at  SergeanVs  Inn  in 
Miciiaclmas  Term  following.  The  boy  and  girl  were  parish  children,  put  under  the  care 
of  a  parishioner  at  whose  house  they  were  lodged  and  maintained;  on  the  day  the  mur- 
der happened,  tlic  man  of  the  house  and  his  wife  went  out  to  their  work  early  in  the 
morning,  and  left  the  children  in  bed  together:  when  they  returned  from  work,  the 
girl  was  missing,  and  the  boy  being  asked  what  was  become  of  her,  answered  that  he 
had  helped  her  up  and  put  on  her  clothes,  and  that  she  had  gone  he  knew  not  whither. 
Upon  this,  strict  search  was  made  in  the  ditches  and  pools  of  water  near  the  house,  from 
an  apprehension  that  the  child  might  have  fallen  into  the  water.  During  this  search, 
the  man  under  whose  care  the  children  were,  observed  that  a  heap  of  dung  near  the 
liouse  had  been  newly  turned  up,  and  upon  removing  the  upper  part  of  the  heap,  he  found 
the  body  of  the  child  about  a  foot's  depth  under  the  surface,  cut  and  mangled  in  a  most 
barbarous  and  horrid  manner.  Upon  this  discovery,  the  boyj  who  was  the  only  person 
capable  of  committing  the  fact,  that  was  left  at  home  with  the  child,  was  charged  with 
the  fact,  which  he  stiffly  denied.  When  the  coroner's  jury  met,  the  boy  vvas  again 
charged,  but  persisted  still  to  deny  the  fact.  At  length  being  closely  interrogated,  he 
fell  to  crying,  and  said  he  would  tell  the  whole  truth.  He  then  said  that  the  child  had 
been  used  to  foul  lierself  in  bed;  that  she  did  so  that  morning,  (which  was  not  true,  for 
the  bed  was  searched  and  found  to  be  clean,)  that  thereupon  he  took  her  out  of  bed  and 
carried  her  to  the  dung  heap,  and  with  a  large  knife  which  he  found  about  the  house, 
cut  her  in  the  manner  the  body  appeared  to  be  mangled,  and  buried  her  in  the  dung  heap, 
placing  the  dung  and  straw  that  was  bloody  under  the  body,  and  covering  it  up  with 
what  was  clean  ;  and  having  so  done,  he  got  water  and  washed  himself  as  clean  as  he 
could.  The  boy  was  the  next  morning  carried  before  a  neighbouring  justice  of  the 
peace,  before  whom  he  repealed  his  confession,  with  all  the  circumstances  lie  had  related 
to  the  coroner  and  his  jury.  'I'he  justice  of  the  peace  very  prudently  deferred  proceeding 
to  a  commitment  until  the  boy  should  have  an  opportunity  of  recollecting  himself.  Ac- 
cordingly he  warned  him  of  the  danger  he  was  in  if  he  should  be  thougiit  guilty  of  the 
fact  he  stood  charged  with,  and  admonished  him  not  to  wrong  himself,  and  then  ordered 
him  into  a  room  where  none  of  the  crowd  that  attended  should  have  access  to  him. 
\Vhen  the  boy  had, been  some  hours  in  this  room,  where  victuals  and  drink  were  pfo- 
vided  for  him,  he  was  brought  a  second  time  before  the  justice,  and  then  he  repeated  his 
former  confession,  upon  which  he  was  committed  to  jail.  On  the  trial,  evidence  was 
gi^n  of  the  declarations  before  mentioned  to  have  been  made  lx;fore  the  coroner  and  his 
jii^,  and  before  the  justice  of  the  peace;  and  of  many  declarations  to  the  same  purpose 


26  HISTORIA  PLACITORUM  CORONA. 

of  death,  though  he  hath  not  attained  annum  pnberfatis,  viz.  four- 
teen years;  though  according  to  the  nature  of  the  oflence  aird  cir- 
cumstances of  the  case  the  judge  may  or  may  not  in  discretion 
reprieve  him  before  or  after  judgment,  in  order  to  the  obtaining  the 


wliich  the  boy  made  to  other  people  after  he  came  to  jail,  and  even  down  to -the  day  of 
his  trial:  for  he  constantly  told  the  same  story  in  substance,  commonly  adding  that  the 
devil  put  him  upon  committing  the  foot.  Upon  this  evidence,  with  some  other  circum- 
stances tending;  to  corroborate  tlie  confessions,  he  was  convicted. 

U|ion  this  report  of  {he  Chief  Justice,  the  judges,  having  taken  time  to  consider  of, it, 
unanimously  agreed,  1.  Tliat  the  declarations  stated  in  the  report  were  evidence  proper 
to  be  left  to  the  jury.  2.  That  supposing  the  boy  to  have  been  guilty  of  this  fact,  there 
were  so  many  circumstances  stated  in  the  report  which  were  undoubtedly  tokens  of 
what  Lord  Hale  calls  mischievous  discretion,  that  he  was  certainly  a  proper  subject  for 
capital  punishment,  and  ought  to  sutTer ;  for  it  would  be  of  very  dangerous  consequence 
to  have  it  thought  that  children  may  commit  such  atrocious  crimes  with  impunity. 
That  there  are  many  crimes  of  the  most  heinous  nature,  such  as  (in  the  present  case) 
the  murder  of  young  children,  poisoning  parents  or  masters,  burning  houses,  &e.,  which 
children  are  very  capable  of  committing,  and,  which  they  may  in  some  circumstances  be 
under  strong  temptations  to  commit;  and  therefore,  though  the  taking  away  the  life  of 
a  boy  often  years  old  might  savour  of  cruelty,  yet,  as  the  example  of  that  boy's  punish- 
ment mjght  be  a  means  of  deterring  other  children  from  the  like  offences,  and  as  the 
sparing  the  boy,  merely  on  account  of  his  age,  woidd  probably  have  a  quite*contrary 
tendency;  in  justice  to  the  public,  the  law  ought  to  take  its  course,  unless  there  re- 
mained any  doubt  touching  his  guilt.  In  this  general  principle,  all  the  judges  concurred  ; 
but  two  or  three  of  them,  out  ot  great  tenderness  and  caution,  advised  the  Chief  Justice 
to  send  another  reprieve  lor  the  prisoner,  suggesting  tliat  it  might  possibly  appear,  on 
further  inquiry,  that  the  boy  had  taken  this  matter  upon  himself  at  the  instigation  of 
some  person  or  other  who  hoped  by  this  artifice  to  screen  the  real  offender  from  justice. 

Accordingly  the  Chief  Justice  granted  one  or  two  more  reprieves;  and  desired  the  jus- 
tice of  the  peace  who  took  the  boy's  examination,  and  also  some  other  persons  in  whose 
prudence  he  could  confide,  to  make  the  strictest  inquiry  they  could  into  the  affair  and' 
report  to  him.  At  length  he,  receiving  no  farther  light,  determined  to  send  no  more 
reprieves,  and  to  leave  the  prisoner  to  tlie  justice  of  the  law  at  the  expiration  of  the  last : 
but,  before  the  expiration  of  that  reprieve,  execution  vi^as  respited  till  further  order,  by 
warrant  from  one  of  the  secretaries  of  state:  and  at  the  Summer  Assizes,  1757,  the  pri- 
soner had  the  benefit  of  His  Majesty's  pardon,  upon  condition  of  liis  entering  imme- 
diately into  the  sea  service.     Yorkers  Case.    Fost.  li.  70. 

Two  remarkable  cases  of  commission  of  the  crime  of  murder  by  boys  under  fourteen 
years  of  age,  have  occurred  in  New  Jersey.  In^  April,  1818,  Aaron,  (a  coloured  boy,) 
was  tried  tor  the  murder  of  a  child,  StejJien  Condlij,  little  more  than  two  years  old,  by 
throwing  him  over  the  curb  into  a  well.  The  whole  material  testimony  in  the  case  was 
a  confession  made  by  the  boy.  The  Chief  Justice,  {Kirkpatrick,)  in  the  course  of  liis 
opinion,  holds  the  following  language:  "  With  respect  to  the  liability  of  infants  to  punish- 
ment, and  to  the  giving  of  their  confessions  in  evidence  against  them,  much  might  be 
said,  and  ought  to  be  said  with  great  caution.  It  is  periijctly  settled,  that  an  infant 
within  the  age  of  seven  years  cannot  be  punished  for  any  capital  offence,  whatever  cir-- 
cumstances  of  mischievous  intention  may  be  proved  against  him,  for  by  the  presumption 
of  law,  he  cannot  have  discretion  to  discern  between  good  and  evil,  and  against  this 
'  jjrcsumption  no  averment  can  be  admitted.  It  is  perfectly  settled  also,  that  between  the 
age  of  seven  and  the  ago  of  fourteen  years,  the  infant  shall  be  presumed  to  be  incapable 
ot' committing  crime  upon  the  same  principle,  the  presumption  being  very  strong  at 
seven,  and  decreasing  with  the  progress  of' his  years;  but  then  this  prcsu)n[)tion,  in  this 
case,  may  be  encountered  by  proof;  and  if  it  shall  appear  by  stronir  and  irretiistiljle  evi- 
dence that  he  had  sufficient  discernment  to  distinguish  good  from  evil,  to  comprehend 
the  nature  and  consequences  of  his  acts,  he  may  be  convicted  and  have  judgment  of 
death."  The  Slate  v.  Aaron,  I  South.  R.  231.  238.  247.  Mr.  Justice  SoiiiharJ,  in  the 
same  case,  holds,much  the  same  language.  "The  distinctions  which  have  been  taken 
in  the  books,  as  to  age,  when  crimes  may  be  eoinmitted.  and  the  criminal  punished,  are 
in  no  ineonsidiu'ablc  degree  arbitrary.  The  great  subject  of  iixpiiry  in  all  cases  ou'rht 
to  be,  the  legal  capacity  of  the  prisoner;  and  this  is  found  in  some  much  earlier  flRn 


IIISTORIA  PLACITORUM  CORONA.  26 

kins's  pardon.  12  .^.vv.  30.  Coroiie  118  8^-  170.  t.^lice  de  Waldho- 
rnui^h  of  the  age  of  tliirteen  years  was  burnt  by  judgment  for  killing 
her  mistress;  and  it  is  there  said,  that  by  the  ancient  law  none  shall 
be  hanged  within  age  which  is  intended  the  age  of  discretion,  viz. 

others.  The  real  value  of  the  distinetions,  is,  to  fix  the  part}',  upon  whom  this  capacity 
lies.  There  is,  indeed,  an  age  so  tender,  tiiat  the  nature  and  consequences  of  acts  can- 
not be  comprehended,  and  every  uncorrupted  feeling  of  the  heart,  as  well  as  every  moral 
and  Icjfal  principle  forbids  punishment.  13ut  after  we  pass  tliis  age  and  progress  towards 
maturity,  there  have  been  periods  settled,  which  ascertain  the  presumption  of  law,  as  to 
the  existence  of  tiiis  capacity.  If  under  fourteen,  especially  under  twelve  years,  the  law 
presumes  that  it  does  not  exist,  and  if  the  Slate  seek  to  punish,  it  must  conclusively  estab- 
lish it.  If  above  the  age  of  fourteen,  the  law  presumes  its  existence,  and  if  the  accused 
would  seek  to  avoid  punishment,  he  must  overcome  that  presumption  by  suflicicnt  evi- 
dence. But  wherever  the  capacity  is  established,  either  by  this  presumption  of  law  or 
the  testimony  of  witnesses,  punishment  always  follows  the  infraction  of  the  law.  If  the 
intelligence  to  apprehend  the  consequences  of  acts;  to  reason  upon  duty,  to  distinguish 
between  right  and  wrongj  if  the  consciousness  of  guilt  and  innocence  be  clearly  mani- 
fested, then  this  capacity  is  shown ;  in  the  language  of  the  books,  the  accused  is  capax 
(loli,  and  "as  a  rational  and  moral  agent  must  abide  the  results  of  his  own  conduct."  Id. 
245,  246.  The  prisoner,  in  this  case,  was  ten  years  and  ten  months  old.  From  the 
printed  report  it  only  appears  that  a  new  trial  was  granted;  but  the  Editor  has  been 
informed  by  one  of  the  counsel  for  the  defendant,  that  the  prisoner  was  acquitted  by  the 
jury  on  the  second  trial. 

In  1828,  J«mcs  Guild,  a  coloured  boy,  of  the  age  of  twelve  years  and- five  months,  was 
indicted  for  the  murder  of  Catharine  Be-jkes,  and  found  guilty.  On  a  motion  for  a  new 
trial  made  to  the  Court  of  Oyer  and  Terminer,  the  Supreme  Court  in  an  advisory  opinion, 
held  themselves  bound  to  advise  the  Court  of  Oyer  and  Terminer  not  to  grant  a  new 
trial,  but  to  proceed  to  discharge  their  duty  by  pronouncing  the  sentence  of  the 
law  on  the  crime  of  murder.  After  an  elaborate  examination  of  the  authorities,  the 
then  Chief  Justice  (Ewing,)  re-iteraied  the  ojjinions  of  Chief  Justice  Kirkpairick, 
and  Mr.  Justice  Southard,  in  The  State  v.  Aaron,  cited  supra.  "The  age  of  the  pri- 
soner was  earnestly  pressed  on  our  consideration  by  his  counsel,  who  strenuously 
insi-tcd  he  was  too  young  to  be  exposed  to  punishment  on  such  evidence,  (his  own  con- 
fession.) At  the  perpetration  of  the  oiFcnce  he  was  aged  twelve  years  and  somewhat 
more  than  five  months.  The  sound,  sensible,  and  legal  rule  on  this  head  is,  in  our 
opinion,  judiciously  as  well  as  lucidly  stated  by  Justice  Southard  in  the  case  oi'  Aaron, 
(supra.)  In  Leaclis  edition  of  Hawkins,  B.  I.  c  1,  page  1,  in  note,  it  is  said,  "from  the 
supposed  imbecility  of  mind,  the  protective  humanity  of  the  law,  will  not,  without  anxi- 
ous circumspection,  permit  an  infant  to  be  convicted  on  his  own  confession.  Yet  if  it 
appear  by  strong  and  pregnant  evidence  and  circumstances,  that  he  was  perfectly  con- 
sciiius  of  the  nature  and  malignity  of  the  crime,  the  verdict  of  a  jury  may  find  him  g^uilty, 
and  judgment  of  death  be  given  against  him."     The  Slate  v.   Guild,  5  Halst,  R.  189. 

1  Gveenl.  on  Ev.  §  217.  219.  221.  222.  223. 

If  a  child  more  than  seven  and  under  fourteen  years  of  age,  is  indicted  for  felony,  it 
will  be  left  to  the  jury  to  say  whether  the  offence  was  committed  by  the  prisoner,  and,  if 
so,  whether  at  the  time  of  the  offence,  the  prisoner  had  a  guilty  knowledge  that  he  or 
6h&  was  doing  wrong.  The  presumption  of  law  is,  that  a  child  of  that  age  has  not  such 
guiliy  knowledge,  unless  the  contrary  be  proved  by  the  evidence.  Rex  v.  Owen,  4  Carr. 
S(  Pay.  iJ.236,  per  Littledale,  J.  See  Rex  v.  Gronmrid^e,  7  Carr.  4-  Pay.  R.  582,  per 
Gasclee,  J.  BcH  on  Presump.  22,  citing  a  MS.  Report  of  the  S.  C.  2  M.  C.  C.  R.  122. 
S.  C.  1  Gree.nL  on  Ev.  §  28.  The  People  v.  Davis,  1  Wheeler's  Crim.  Cas.  2.30.  The 
People  V.  Teller,  1  /</.  231 ,  &  note.  Com.  v.  Lani^an,  2  Boston  Law  Rep.  49,  per  Tha'cher, 
J.  Wharton's  Am.  Crim.  Law,  17.  19.  CaSe  of  Moses  Chapman  Elliot,  4  Boston  Law 
Rep.  32'J.  Com.  V.  Freud),  Thatcher's  Crim.  Cas.  103.  Burn's  Just.  tit.  Children,  29, 
cd.  by  Chitti/  Sf  Bere.  Com.  v.  Ktairy,  \  Ashmead  R.  256,  per  Krn<r,  fres.  Ward  v. 
TheCom.3Lei;^h.R.li3. 

In  Massrichusctts  it  has  been  decided  that  an  infant  under  the  age  of  fourteen  years, 
may  be  indicted  for  an  assault  with  intent  to  commit  a  rape.     Commonwealth  v.  Green, 

2  lick.  380.     This  case  conflicts  with  Reg.  v.  Vhil'ip^,  8  Car.  ^  P.  736,  in  which  it  was 


26  HISTORIA  PLACITORUM  CORONA. 

fourteen  years;  but  before  Spigiirnel  an  infant  within  age(«)  that 
had  killed  his  companion,  and  hid  himself  (.se  miicha)  was  presently- 
hanged;  for  it  appeared  hj  h'\5  mucking  he  could  discern  between 
good  and  evil,  and  malitia  svpplet  xtatem. 

25  E.  3.  85.  Corone  129.  One  within  age  was  found  guilty  of 
larceny,  and  by  reason  of  his  nonage  judgment  was  respited,  but 
afterwards  he  was  brought  to  the  bar  and  had  his  judgment;  though 
this  book  be  generally  one  ivilhin  age,  it  must  be  intended  within 
the  age  of  discretion,  viz.  fourteen  years,  for  it  was  never  made  a 
doubt,  whether  if  above  that  age  he  might  not  have  judgment. 

3.  But  yet  farther,  if  an  infant  be  above  seven  years  old,  and  under 
twelve  years,  (which  according  to  the  ancient  law  was  JEtas  puber- 
tati proxima,^u(!i  commit  a  felony,  in  this  case  prima  facie  he  is  to 
be  judged  not  guilty,  and  to  be  found  so,  because  he  is  supposed  not 
of  discretion  to  judge  between  good  and  evil  ;(6)  yet  even  in  that 
case  if  it  appear  by  strong  and  pregnant  evidence  and  circum- 
[  27  ]  stances,  that  he  had  discretion  to  judge  between  good  and 
evil,  judgment  of  death  may  be  given  against  him.  3H.1.  1. 
b.  <5'  12.  b.  An  infant  of  the  age  of  nine  years  killed  an  infant  of  the 
like  age;  he  confessed  the  felony,  and  upon  examination  it  was 
found  he  hid  the  blood  and  the  body;  the  justices  held  he  ought  to 
be  hanged. (c) 

But  in  cases  of  this  nature,  1.  It  is  necessary  that  very  strong  and 
pregnant  evidence  ought  to  be  to  convict  one  of  that  age,  and  to 
make  it  appear  he  understood  what  he  did;  for  if  the  law  require 
such  an  evidence  where  the  offender  is  above  twelve,  and  under 
fourteen,  much  more  if  he  were  under  twelve  at  the  time  of  the  fact 
committed.  2.  The  circumstances  must  be  inquired  of  by  the  jury, 
and  the  infant  is  not  to  be  convicted,  upon  his  confession.  3.  It  is 
prudence  in  such  a  case  even  after  conviction  to  respite  judgment,  or 
at  least  execution ;((/)  but  yet  I  do  not  see  how  the  judge  can  dis- 
charge him  if  he  be  convict,  but  only  reprieve  him  from  judgment, 
and  leave  him  in  custody  till  the  king's  pleasure  be  known. 

And  therefore  the  book  of  35  H.  6.  11.  <5'  12.  per  Moyle  Sf  Billing, 
"  That  though  a  jury  should  find  such  an  infant  guilty,  the  court 
ex  officio  must  discharge  him,^^  must  be  understood  either  ^^5/  only 
of  a  reprieve  before  judgment,  or  secondly  at  least,  that  the  jury  find 

(a)  Ten  years  old,  according  to  FilzherberCs  Report  Corone  118. 

\b)  B.  Corone  13.'i. 

(r)  But  liowcvcr  they  respited  tlic  execution  tliat  lie  miglit  get  qi  pardon.  F.  Corone  bl, 
B.  Corone  I'.iS.  Dallon  says  that  an  infant  ofcijrht  years  of  age  may  commit  homicide, 
and  siiali  be  iianged  for  it.  See  Dalluris  Justice,  cap.  147. 

{(1)  Dalt.  Justice,  p.  505. 

held,  (Palteson,  J.)  that  a  boy  wiio  at  the  time  of  the  commission!  of  the  offence  of  rape, 
vias  under  fourteen  years  of  age^  could  not,  in  |)oint  of  law,  be  guilty  of  an  assault  with 
intent  to  commit  a  rape;  and  if  he  was  under  tliat  age  no  evidence  is  admissible  to 
fihow  tli:it,  in  point  of  fact,  he  could  commit  the  ollince  of  rape.  See  also  to  the  same 
clfirt,  Iti(rina  v.  Jordan,  'J  Car.  ^^•  I'.  IIH.  Jieiiinu  v.  Brbniloio,  9  Car.  ^  P.  366. 
Under  the  iStatute,  1  Xict,  c.  85,  s.  11,  he  might  be  convicted  of  an  assault. 


HISTORIA  PLACITORUM  CORONA.  27 

the  fact,  and  that  lie  was  either  within  the  age  of  infancy,  viz.  seven 
years  old,  or  that  he  did  the  fact,  but  was  under  fourteen,  and  not  of 
discretion  to  judge  between  good  and  evil;  in  which  case  the  court 
ex  officio  ought  to  discharge  him.  because  it  is  not  felony. 

4.  And  lastly,  If  an  infant  within  age  be  infra  setatem  infantisCj 
viz.  seven  years  old,  he  cannot  be  guilty  of  felony,(c)  what- 
ever circumstances  proving  discretion  may  appear;  for  ea?  [  2S  ] 
prcsumptione  juris  he  cannot  have  discretion, (/)  and  no 
averment  shall  be  received  against  that  presumption:  and  aUhough 
tlie  laws  of  England,  as  well  as  the  Civil  and  Canon  law,  assign  a 
difference  between  males  and  females  as  to  their  age  of  consent  to 
marriage,  viz.  fourteen  to  the  male,  twelve  to  the  female;  yet  it 
seems  to  me,  that  as  to  njatters  of  crimes,  especially  in  relation  to 
capital  punishments,  the  females  have  the  same  privilege  of  nonage 
as  ihe  males;  and  therefore  the  regular  JEtas piibertatis'm  reference 
to  capital  crimes  and  punishments  of  both  is  fourteen  years,  with 
those  various  temperaments  and  exceptions  above  assigned. 

And  it  is  to  be  observed,  that  in  all  cases  of  infancy,  insanity,  <5'C.  if  a 
person  uncapable  to  commit  a  felony  he  indicted  by  the  grand  inquest, 
and  thereupon  arraigned,  the  petit  jury  may  either  find  him  generally 
not  guilty,  or  they  may  find  the  matter  specially,  that  he  committed 
the  fact,  but  that  he  was  non  compos,  or  that  he  was  under  the  age 
of  fourteen, [3]  scilicet  setatis  13  annoriim,  and  had  not  discretion  to 
discern  between  good  and  evil,  S,'  no7i  per  feloniam  ;  and  thereupon 
the  court  gives  judgment  of  acquittal.  21.  //.  7.  3I.(,§-)  But  if  a  man 
be  arraigned  in  such  a  case  upon  an  indictment  of  murder  or  man- 
slaughter by  the  coroner's  inquest,  there  if  the  party  committed  the 
fact,  regularly  the  matter  ought  to  be  specially  found,  because  if  the 
jury  find  the  party  not  guilty,  they  must  inquire  how  he  came  by  his 
death,  viz.  "Et  juratores  prsedicti  quaesiti  per  curiam,  quomodo  is 
ad  mortem  suam  devenitdicunt  super  sacramentum  suum,  quod  prae- 

dictus  A.  B.  die anno apud  D.  dum  non  fuit  compos  mentis, 

or  dum  fuit  infra  setatem  discretionis,  scilicet  9  annorum,  nee  scivit 
discernere  inter  bonum  &  malum,  pra3dictum  J.  S.  cum  gladio,  &c. 
percussit  &  ipsum  ad  tunc  &  ibidem  occidit,  sed  non  ex  malitia  pre- 
cogitata  neque  per  feloniam,  vel  felleo  animo;  &  sic  idem  J.  S.  ad 
mortem  suam  devenit."  But  if  he  be  first  arraigned,  and 
acquitted  upon  the  indictment  by  the  grand  inquest,  and  [  29  ]] 
found  not  guilty,  he  may  plead  tliat  acquittal  upon  his 
arraignment  upon  the  coroner's  inquest, and  that  will  discharge  him; 
and  tiie  petit  jury  shall  inquire  farther  liow  the  party  came  by  his 
death. 

(c)  And  yet  there  is  a  precedent  in  the  register, /o.'.  309.  b.  of  a  pardon  granted  loan 
infant  within  the  age  of  seven  years,  who  was  indicted  ibr  homicide;  in  lliis  case  the 
jury  found,  that  he  did  the  fact  beibrc  he  was  seven  years  old. 

(J)  Plomd.l'i.a. 

if)  B.  Corone  61. 

[3]  See  Com,  v.  Lanigan,  2  (Boston)  Law  Rep,  49. 
VOL.  I. — 4 


29  HISTORIA  PLACITORUM  CORONJ^:. 


CHAPTER  IV. 

CONCERNING     THE     DEFECT     OF    IDIOCY,    MADNESS     AND     LUNACY,    IN 
REFERENCE   TO  CRIMINAL  OFFENCES  AND  PUNISHMENTS. 

And  thus  far  touching  that  natural  defect  of  infancy.  Now  con- 
cerning another  sort  of  defect  or  incapacity,  namely  idiocy,  madness 
and  lunacy.  For  though  by  the  law  of  England  no  man  shall 
avoid  his  own  act  by  reason  of  these  defects, (c/)  though  his  heir  or 
executor  may,  yet  as  to  capital  offences  tliese  have  in  some  cases  tha 
advantage  of  this  defect  or  incapacity  ;(/;)  and  this  defect  comes  under 
the  general  name  oi  Dementia,  which  is  thus  distinguisiied. 

I.  Idiocy,  or  fa/uily  a  nativitate  vel  dementia  natii)Htlis;[l]  such 
a  one  is  described  by  Fitzlierbert,  who  knows  not  to  tell  20^,  nor 
knows  who  is  his  father  or  mother,  nor  knows  his  own  age;  but  if 
he  knows  letters,  or  can  read  by  the  instruction  of  another,  then  he 
is  no  idiot.  F.  N.  B.  233.  h.  These,  though  they  may  be  evi- , 
dences,  yet  they  are  too  narrow,  and  conclude  not  always,  for  idiocy 
or  not  is  a  question  of  fact  triable  by  jury,  and  sometimes  by 
inspection. 

II.  Deynentia  accidentalis  vel  advcntitia,  which  proceeds 
r  30  3  f''om  several  causes;  sometimes  from  the  distemper  of  the 
humours  of  the  body,  as  deep  melancholy  or  adust  choler ; 
sometimes  from  the  violence  of  a  disease,  as  a  fever  or  palsy;  some- 
times from  a  concussion  or  hurt  of  the  brain,  or  its  membranes  or 

(a)  For  it  is  said  to  be  a  maxim  in  law,  lliat  no  man  of  full  age  shall  be  permitted  to 
stultify  himself.  4  Co.  Rep.  123.  b.  Beverly's  case,  Co.  Lit.  247.  a.  1'he  reason  hereof 
is,  because  a  man  cannot  know  or  remember  what  acts  he  did  when  he  was  of  jfon  sane 
memorij.  35  Assis.  pi.  10.  See  contra  F.  N.  B.  p.  44i).  Show.  Ca.  Furl.  153.  2. 
Sa!k.  576.[2] 

(6)  Co.  Lit.  247.  b  Plowd.  19.  a. 

[1]  See  Wheller\.  Alderson,  3  Haorg.  R.  G02.  Ruij  on  Insanity,  c.  2.  p.  69.  2d.  Ed. 

[2]  Black.  Comm.  291,  292;  1  Fonbl.  Eq.  B.  1.  ch.  2.  §  1  and  note  (d);  Co.  Lilt.  247. 
Yules  V.  Buen,  2  Sir.  R.  1104.  See  Shelford  on  Lunatics,  ch  6.  ^  2.  p.  263.  ch.  9.  §-2. 
p.  407,  S^-c.  Baxter  v.  Fortamouth,  7  JJowl.  c^-  Uyl.  618;  S.  C.  5  Barn.  ^  Cressw.  1,70; 
Brown  v.  Joddrell,  3  Carr.  cSf  Fayne,  30:  Newland  on  Contracts  ch.  1.  p.  15  to  21.  The 
subject  is  a  good  deal  discussed  by  Mr.  Justice  Blaekstonc,  in  his  Commentaries,  who 
does  not  attempt  to  disguise  its  gross  injustice,  (2  Black.  Comm.  191,  292.)  It  is  fully 
discussed  by  Mr.  Fonblanque  in  his  learned  notes,  (1  Fonbl.  Eq.  B.  1  ch.  2.  §  1  and  notes 
{a)  to  (A:),  and  by  Lord  Coke  in  his  commentary  on  Littleton,  {Co.  Lit.  247.  a.  and  b.) 
who  adheres  firinly  to  it  as  a  maxim  in  the  conmion  law.  In  America  this  maxim  has 
not  been  of  universal  adoption,  in  tiie  State  Courts,  if  indeed  it  has  ever  been  recognized 
as  binding  in  any  of  tiic  Courts  of  Comn>on  Law.  See  Somes  v.  Skinner,  16  Mans.  R. 
348;  Webster  V.  Woodford,  3  Day,  R.  90-100;  Mitchdl  v.  Kin^inan,  5  Fick.  R.  431, 
In  modern  times,  tlie  English  C^ouits  of  Jiaw  seem  to  be  disposed,  as  far  as  possible,  to 
escajie  from  the  maxim.  Ball  v.  Maunin,3  Bli^h.  R.  (new  series)  1.  And  even  in  Eng- 
land, although  the  party  himself  could  not  set  aside  his  own  act,  yet  the  King  as  having 
the  general  custody  of  idiots  and  lun>ili<;s,  mii^ht  by  l)is  attornty  general,  on  a  bill  set 
aside  the  same  acts.  Bullcr,  N.  I'rins,  172  ;  1  Story's  Eq.  Jur.  §  255,  note  (4);  2  (Jreenl. 
Ev.  §  369;  3  Bucari's  Ah.  Idiots  and  Lunatics,  V. 

The  ancient  rule  of  the  common  law  must  now  be  considered  as  entirely  exploded. 


HISTORIA  PLACITORUM  CORON.gi:.      _  30 

organs;  and  as  it  comes  from  several  canses,  so  it  is  of  several  kinds 
ordeo:rees  ;  which  as  to  the  purpose  in  hand  may  be  thus  distributed  : 
1.  There  is  a  partial  insanity  of  mind  ;  and  2.  a  total  insanity. 

The  former  is  either  in  respect  to  things  quoad  hoc  vel  illud  insa- 
nire;  some  persons,  that  liave  a  competent  use  of  reason  in  respect  of 
some  subjects,  are  yet  under  a  particular  dementia  in  respect  of  some 
particular  discourses,  subjects,  or  applications;  or  else  it  is  partial  in 
respect  of  degrees:  and  this  is  the  condition  of  v^ry  many,  especially 
melancholy  persons,  who  for  the  most  part  discover  their  defect  in 
excessive  fears  and  griefs,  and  yet  are  not  wholly  destitute  of  the  use 
of  reason;  and  this  partial  insanity  seems  not  to  excuse  them  in  the 
committing  of  any  offence  for  its  matter  capital;  for  doubtless  most 
persons  that  are  felons  of  themselves,  and  others  are  under  a  degree 
of  partial  insanity,  when  they  commit  these  offences:  it  is  very  diffi- 
cult to  define  the  indivisble  line  tliat  divides  perfect  and  partial  in- 
sanity; but  it  must  rest  upon  circumstances  duly  to  be  weighed  and 
considered  both  by  the  judge  and  jury,  lest  on  the  one  side  there 
be  a  kind  of  inhumanity  towards  the  defects  of  human  nature,  or  on 
the  other  side  too  great  an  indulgence  given  to  great  crimes:  the  best 
measure  that  I  can  think  of  is  this ;  such  a  person  as  labouring  under 
melancholy  distempers  hath  yet  ordinarily  as  great  understanding,  as 
ordinarily  a  child  of  fourteen  years  hath,  is  such  a  person  as  may  be 
guilty  of  treason  or  felony. 

Again,  a  total  alienation  of  the  mind,  or  perfect  madness;  this  ex- 
cuseth  from  the  guilt  of  felony  and  treason  :(<:/)  de  qiiibus  infra. 
This  is  that,  which  in  my  lord  Cuke's  Pleas  of  the  Crown,  p.  6.  is 
called  by  him  absolute  madness,  and  total  deprivation  of  memory. 

Again,  this  accidental  dementia,  whether  total  or  partial, 
is  distinguished  into  that  which  is  permanent  or  fixed,  and  [  3i  ]] 
that  which  is  interpolated,  and  by  certain  periods  and  vicis- 
situdes: the  former  is phrenesis  or  madness;  the  latter  is  that,  which 
is  usually  called  lunacy,  for  the  moon  hath  a  great  influence  in  all 
diseases  of  the-brain,  especially  in  this  kind  of  dementia;  such  persons 
commonly  in  the  full  and  change  of  the  moon,  especially  about  the 
equinoxes  and  summer  solstice,  are  usually  in  the  height  of  their  dis- 
temper ;  and  therefore  crimes  committed  by  them  in  such  their  distem- 
pers are  under  the  same  judgment  as  those  whereof  we  have  before 
spoken,  namely,  according  to  the  measure  or  degree  of  their  distem- 
per ;  the  person  that  is  absolutely  mad  for  a  day,  killino;  a  man  in  tliat 
distemper,  is  equally  not  guilty,  as  if  he  were  mad  without  intermis- 
sion. But  such  persons  as  have  their  lucid  intervals,  (which  ordi- 
narily hap[)ens  between  the  full  and  change  of  the  moon)  in  such  in- 
tervals have  usually  at  least  a  competent  use  of  reason,  and  crimes 
committed  by  them  in  these  intervals  are  of  the  same  nature,  and 
subject  to  the  same  punishment,  as  if  they  had  no  such  deficiency  ;(e) 
nay,  the  alienations  and  contracts  made  by  them  in  such  intervals  are 
obliging  to  their  heirs  and  executors. (/) 

(d)  21  //.  7.  31.  b.  (e)  F.  Corone,  324.  (/)  4  Co.  125.  a. 


31  HISTORIA  PLACITORUM  CORON^E. 

Again,  tliis  accidental  demenlia,  whether  temporary  or  permanentj 
is  eitlier  the  more  dangerous  and  pernicious,  commonly  axWed  furor-y 
rabies,  mania,  which  commonly  ariseth  from  adus.t  choler,  or  the  vio- 
lent inflammation  of  the  blood  and  spirits,  which  doth  not  only  take 
away  the  use  of  reason,  but  also  superadds  to  the  unhappy  state  of 
the  patient,  rage,  fury,  and  tempestuous  violence  ;  or  else  it  is  such  as 
only  takes  away  the  use  and  exercise  of  reason,  leaving  the  person 
otiierwise  rarely  noxious, such  as  is  a  deep  delirium,  stiijjo7\  memory 
quite  lost,  the  phantasy  quite  broken,  or  extremely  disordered.  And 
as  to  criminals  these  dementes  are  both  in  the  same  rank;  if  they  are 
totally  deprived  of  the  use  of  reason,  they  cannot  be  guilty  ordinarily 

of  capital  otfences,  for  they  have  not  the  use  of  understand- 
[  32  ]   ing,  and  act  not  as  reasonable  creatures,  but  their  actions 

are  in  eflect  in  the  condition  of  brutes. (^) 
III.  The  third  sort  of  dementia  is  that,  whicli  is  dementia  affec-' 
tata,  namely  drunkenness.lo^^    This  vice  doth  deprive  men  of  the  use 

(g-)  Braci,  420.  h.  F.  Corone,  1^3,  351. 

[3]  With  regard  to  drunkenness,  it  is  now  settled  that  a  man  cannot  avail  himself  of 
his  own  gross  misconduct  and  vicious  acts,  to  shelter  himself  from  the  legal  conseriuen- 
ces  of  crime.  But  to  make  him  criminally  responsible,  the  act  must  take  place  and  be 
the  immedinte  result  of  the  fit  of  intoxication,  and  while  it  lasts;  and  not  tlie  result  of 
insanity  remotely  occasioned  by  previous  habits  of  gross  indulgence  in  spirituous  liquors. 
The  law  looks  to  the  immediate,  and  not  to  the  remote  cause;  to  the  actual  state  of  tho 
party,  and  not  to  the  causes  which  remotely  produced  it.  2  Gieenl.  onEv.  §  374.  Drunken- 
ness, it  was  said  in  an  early  case,  can  never  be  received  as  a  ground  to  excuse  or  palliate 
an  offence:  this  is  not  merely  the  opinion  of  a  speculative  philosopher,  the  argument  of 
counsel,  or  the  obiter  dictum  of  a  single  judge,  but  it  is  a  sound  and  long  established 
maxim  of  judicial  policy,  from  wiiich  perhaps  a  single  dissenting  voice  cannot  be  found. 
But  if  no  other  authority  could  be  adduced,  the  uniform  decisions  of  our  own  Courts  from 
the  first  establishment  of  the  government,  would  constitute  it  now  a  part  of  the  coinmua 
la.w  of  the  land.  Wharton''s  Am.  Crim.  Law,  13,  14 ;  2  Rice^s  Dig.  Tit.  Murder  and  Man- 
slaughter, p.  105;  1  Story's  Eq.  Jur.  §  230,  231,  and  cases  there  cited  in  notes,  which, 
though  mostly  civil  cases,  are  still  valuable  for  the  analogies  in  principle  there  to  be  found. 

"  If  a  person  that  is  drunk  kills  another,  this  shall  be  felony,  and  he  shall  be  hanged 
for  it,  and  yet  he  did  it  through  ignorance,  for  when  he  was  drunk  he  had  no  understand- 
ing or  memory;  but  inasmuch  as  that  ignorance  was  occasioned  by  his  own  act  and 
folly,  and  he  might  have  avoided  it,  he  shall  not  be  privileged  thereby.  And  Aristotle 
says,  such  a  man  deserves  double  punishment,  because  he  has  doubly  offended,  viz:  in 
being  drunk  to  the  evil  example  of  others,  and  in  committing  the  crime  of  homicide." 
Per  I'oUard,  Serg.,  arguendo  in  Reniger  v.  Fogossa,  I'lowd.  R.  19  ;  Beverlei/s  CasCy  4 
Rep.  125. 

"  The  prisoner's  being  intoxicated  docs  not  alter  the  nature  of  the  offence.  If  a  man 
chooses  to  get  drunk,  it  is  his  own  voluntary  act;  it  is  very  diifercnt  from  a  madness 
•which  is  not  caused  by  any  act  of  the  person.  That  voluntary  sj)ocies  of  madness  which 
it  is  in  tlic  party's  power  to  abstain  from,  he  must  answer  for."  Per  Alderson,  B.,  in  Rex 
\.]\lealdn,l  C.&;  P.2[n.  ~ 

"If  a  nian  makes  himself  voluntarily  drunk,  that  is  no  excuse  for  any  crime  be  nia'y 
commit  whilst  he  is  so;  he  must  take  the  conscqilence  of  his  own  voluntary  act,  or  most 
crimes  would  otherwise  go  unpunished.  But  drunkenness  may  be  taken  into  considera- 
tion in  cases  where  what  the  law  deems  suHicient  provocation  has  been  given,  because 
the  question  is,  in  such  cases,  wiiethcr  the  fatal  act  is  to  be  attributed  to  the  paAsion  of 
anger  excited  by  the  previous  provocation,  and  that  passion  is  more  easily  excitable  in  a 
person  when  in  a  state  of  intoxication  than  when  be  is  sober.  So,  when  the  question 
is,  whether  words  have  been  uttered  vv'ith  a  deliberate  purpose,  or  are  merely  low  and 
idle  expressions,  the  drunkenness  of  the  person  uttering  them  is  ])roner  to  be  considered. 
But  if  there  is  really  a  previous  determination  to  resent  a  slight  affront  in  a  barbarous 


HISTORIA  PLACITORUM  CORON.E.  32 

of  reason,  and  puts  many  men  into  a  perfect,  but  temporary  phrenzy; 
and-therefore,  according  to  some  Civilians, (/^)  such  a  person  comniit- 
ing  fiojnicide  sliall  not  be  punished  simply  for  the  crime  of  homicide, 
but  shall  suifer  for  his  drunkenness  answerable  to  ttie  nature  of  the 

(A)  Bartholinus  and  others.     See  Covarruvias,  Tom,  1.  p.  557.  in  relect.  ad  Clem.     Si 
furiosus.  Far.  iii.  §.  3.  ^-  4. 


manner,  the  state  of  drunkenness  in  which  the  prisoner  was,  oug-htnot  to  be  regarded,  for 
it  would  furnish  no  excuse."  Per  Parke,  B.,  in  Rex  v.  Thomas,  1  C.  ^  P.  820. 

"  It  is  a  maxim  of  law,  that,  if  a  man  gets  himself  intoxicated,  he  is  liable  to  tlie  con- 
sequences, and  is  not  excusable  on  account  of  any  crime  he  may  commit  when  infuriated 
by  liquor,  provided  he  was  previously  in  a  fit  state  of  reason  to  know  right  from  wrong. 
If,  indeed,  the  infuriated  state  at  which  he  arrives  should  continue  and  become  a  lasting 
malady,  then  he  is  not  amenable."     Per  Holroyd,  J.  in  Burrom^s  Case,  1  Lew.  C.  C.  75. 

"If  either  the  insanity  has  supervened  from  drinking,  without  the  panel's  having  been 
aware  that  such  an  indulgence  in  his  case  leads  to  such  a  consequence,  or  if  it  has  arisen 
from  the  combination  of  drinking,  with  a  half  crazy  or  infirm  state  of  mind,  or  a  previous 
wound,  or  illness  which  rendered  spirits  fatal  to  his  intellect,  to  a  degree  unusual  in  otlier 
men,  or  which  could  not  have  been  anticipated,  it  seems  inhuman  to  visit  him  with  the 
c.\treme  punishment  which  was  suitable  in  the  other  ease.'"'  In  such  a  case,  the  proper 
course  is  to  convict;  but  in  consideration  of  the  degree  of  infirmity  proved,  recommend 
to  the  royal  mercy."  Alison's  Princ.  of  the  Crim.  Law  of  Scotland,  654,  quoted  in  Gui/s 
Med.  Jur.  277.  Moreover  there  seems  to  be  little  doubt,  that  in  these  cases,  the  occa- 
sional thirst  for  spirituous  drinks,  is,  itself,  but  one  of  the  symptoms  or  effects  of  the  dis- 
eased  condition  of  the  brain,  as  we  see  it  occurring  in  persons  who  are  not  habitually  in- 
temperate, and  who  even  abstain  for  weeks  or  months  from  all  use  of  intoxicating  liquors.- 
If  this  be  so,  which  we  think  none  will  dispute,  then  the  intoxication  itself  is  but  an 
accidental  and  involuntary  consequence  of  a  maniacal  state  of  the  mind,  depending  on 
cerebral  disorder,  and  can,  by  no  means,  impart  a  character  of  criminality  to  any  action 
to  which  it  may  give  rise.     Guy's  Med.  Jur.  217 ;  Ray  on  Insanity,  c.  25. 

The  following  cases  are  given  by  the  American  Editor  of  Guy,  (Dr.  Lee)  in  a  note  to 
page  277,  above  cited. 

I.  N.  M.  Thomas  was  tried  May  13,  1840,  for  the  murder  o? Hallet  Greenman,  at  Flo- 
rida, Montgomery  Co.,  N.  Y.,  Nov.  24,  183D.  The  homicide  was  committed  during  a  fit 
of  intoxication,  and  the  prisoner  was  found  guilty.  The  Judges  of  the  Supreme  Court 
and  the  Attorney  General  certified  to  the  legality  of  the  conviction  and  the  sufficiency  of 
the  evidence.     The  sentence  was  commuted  to  imprisonment  for  life. 

II.  John  Smock  was  tried  in  Dec.  1839,  for  the  murder  of  his  wife  in  the  city  of  New 
York,  Tuesday,  June  25,  1839.  They  were  both  very  intemperate,  and  in  a  fit  of  drunk- 
enness the  wound  was  inflicted,  of  which  she  died,  a  few  days  aftqr.  The  physician  of 
the  city  prison  testified  that  he  was  labouring  under  delirium  tremens  at  the  time.  He 
was  found  guilty,  with  a  recommendation  to  mercy;  in  accordance  with  which  the  sen- 
tence was  commuted  to  imprisonment  for  life. 

III.  Robert  Miller  was  tried  in  Oct.  1839,  for  the  murder  of  Barney  Leddy,  at  Utica, 
April,  1839.  On  the  trial  it  was  proved  that  the  killing  grew  out  of  a  drunken  quarrel 
and  light,  (without  previous  animosity,)  brought  on  by  a  jug  of  liquor  which  the  deceased 
brought  to  Miller's  house.     The  accused  was  convicted  and  hung. 

IV.  Jabtz  Fuller  was  tried  in  March,  1840,  for  the  murder  of  his  wife  at  Somerstoicn, 
Westchester  Co.,  May  26,  1839.  They  were  both  very  intemperate,  and  in  a  fit  of  in. 
toxication,  prompted  by  jealousy,  he  injured  her  so  severely  b}^  stamping  upon  her,  that 
she  died  four  days  afterward  from  the  effect  of  her  bruises.  It  appeared  from  the  testi- 
mony, that  he  was  of  intemperate  habits,  and  quick  tempered;  but  when  sober,  of  a  civil 
and  quiet  demeanour.     He  was  convicted,  and  hung.  May  22,  1840. 

V.  Johri  Johnson  was  tried  in  AW.  1840,  for  the  murder  of  his  wife  at  Buffalo,  Aug. 
19,  1840.  It  was  proved  on  the  trial  that  he  was  much  intoxicated  on  the  day  of  the 
murder,  though  several  witnesses  gave  him  a  good  character,  as  a  quiet  and  peaceable 
man,  industrious  and  trusty.     He  was  convicted  and  hung  on  the  19th  of  June,  1841. 

The  law  will  be  found  fiilly  discussed  in  the  following  cases. 

Perm  v.  McFall,  Add.  257.     U.  S.  v.  Drew,  5  Mason  R.  29,  30.     3  Am.  Jur.  7.  S.  C. 


32  HISTORIA  PLACITORUM  C0R0NJ5:. 

crime  occasioned  thereby;  so  tiiat  yet  the  formal  cause  of  his  punish- 
ment is  rather  the  drunkenness,  than  the  crime  committed  in  it:  but 
by  the  laws  of  England  such  a  person (^■)  shall  have  no  privilege  by 
this  voluntary  contracted  madness,  but  shall  have  the  same  judg- 
ment as  if  he  were  in  his  right  senses.  Plowd.  19.  a.  Crompt.  Just. 
29.  a. 

But  yet  there  seems  to  be  two  allays  to  be  allowed  in  this  case. 

1.  That  if  a  person  by  the  unskilfulness  of  his  physician,  or  by  the 
contiivance  of  his  enemies^  eat  or  drink  such  a  thing  as  causeth  such 
a  temporary  or  permanent  phrenzy,as  aconituni  ox  nux  vomica,\\\\s 
puts  him  into  the  same  condition,  in  reference  to  crimes,  as  any  other 
phrenzy,  and  equally  excuseth  him. 

2.  Tliat  although  ihe  simplex  phrenzy  occasioned  zmwef/Zc/e/y  by- 
drunkenness  excuse  not  in  criminals,  yet  if  by  one  or  more  such  prac- 
tices, an  habitual  or  fixed  phrenzy  be  caused,  though  this  madness 
was  contracted  by  the  vice  and  will  of  the  party,  yet  this  habitual 
and  fixed  phrenzy  thereby  caused  puts  the  man  into  the  same  condi- 
tion in  relation  to  criajes,  as  if  the  same  were. contracted  involuntarily 
at  first. 

Now  touching  the  trial  of  this  incapacity,  and  who  shall  be  ad- 
judged in  such  a  degree  thereof  to  excuse  from  the  guilt  of  capital 
offences,  this  is  a  matter  of  great  difficulty,  partly  from  the  easiness 
of  counterfeiting  this  disability,  when  it  is  to  excuse  a  nocent,  and 
partly  from  the  variety  of  the  degrees  of  this  infirmity, 
[  33  ]  whereof  some  are  sufficient,  and  some  are  insufficient  to  ex- 
cuse persons  in  capital  offences. 

Yet  the  law  of  England  hath  afforded  the  best  method  of  trial, 
that  is  possible,  of  this  and  all  other  matters  of  fact,  namely,  by  a  jury 
of  twelve  men  all  concurring  in  the  same  judgment,  by  the  testimony 

(0  4  Co.  125.  a. 


l^ennet  v.  The  Slate,  Mart.  Sf  Yer<r.  136, 137.  Cornwell  v.  The  State,  Mart.  S(  Yerg.  155. 
l59.  Per  Crabb,  J.  delivering'  tiie  majority  opinion  of  the  "S.  C.  of  Tennessee.  The 
State  V.  Toohey,  cited  from  MS.  Dec.  1S19,  2  Rice's  S.  C.  Dig.,  Tit.  Murder  &  Man- 
slaughter, p.  104,  105.  The  State  v.  Turner,  1  Ohio  Rep.  29,30.  TIte  State  v.  Thompson, 
Id.  617.  622.  625.  Burroughs  v.  Rirhman,  1  Green's  N.  J.  Rep.  238.  John  Burrow's 
Cuse,  1  Lewin  C.  C.  15.  Per  Holroyil,  J.  Rennie's  Case,  Id.  76.  Per  Uulroi/d,  J,  Mar. 
shaWs  Case,  Id.  76.  Per  Parke,  J.  lioodier's  Case,  Id.  76.  Per  Parke,  J.  Rex  v.  Carroll, 
7  Ciirr  4'  Payne,  145.  Per  Park  6f  Littledale,  J.  J.  overruling  Rex  v.  Gundlvy,  1  Russ.  on 
C.  S^  M.  8.  2iZ  Ed.  Rex  v.  Meakin,  7  Carr  Sf  Payne,  297.  Per  Aldcrson,  B.  Rex  v.  Tho. 
mas,  M.  817.  Per  Parke,  B.  Reis.  v.  Cruse,  S  Id.  546.  Per  Palteson,  J.  Pearson's  Case, 
^  Lewin  C.  C.  144.  William  McDnnough's  Case,  Ray  on  Insanity,  §  398.  2d  ed.  Va~ 
teld's  Case,  Id.  §  299.  2d  Ed.  Wilson's  Case,  Id.  §  405.  M  Ed.  Budsell's  Case,  Id. 
§  406.  2d  ed.  Western  Jour.  Med.  Science,  Vol.  3.  Thiel's  Case,  Ray  on  Insanity^ 
\w.).2ded.     AI)hotl'sCase,Id.^'il.G.2ded. 

For  an  ample  discussion  of  the  criminal  responsibility  of  the  drunkard,  the  reader  is 
referred  to  the  Treatise  of  Dr.  Ifay  (of  Maine)  on  the  Medical  Jurisprudence  of  Insanity, 
c.  24,  25.  §  375  to  §  418.  Mucnish's  Anatomy  of  Drunkenness  (passim.)  Hojfbauer's  Psy- 
colo'jie,  §  195.  Oiorget  Des  Maladies  Mentalia,  Vol.  2.  p.  80,  cited  by  Dr.  liay.  Mitler. 
marie  on  the  Effect  of  Drunkenness  upon  Criminal  Responsibiliti/,  §  VI.  VII.  VIll.  IX. 
American  Jar.  Vol.  3.  p.  7,  9.  /(/.  ^'ul.  21.  p.  6.  Id.     Puley's  Mur.  Phil.  B.  IV.  c.  2. 


HISTORIA  PLACITORUM  CORONA.  33 

of  witnesses  vivd  voce  in  the  presence  of  the  judge  and  jury,  and  by 
the  inspection  and  direction  of  the  judge. 

There  are  two  sorts  of  trials  of  idiocy,  madness,  or  lunacy;  the 
first,  in  order  to  the  commitment  or  custody  of  the  person  and  his 
estate,  which  belongs  to  the  king,  either  to  his  own  use  and  benefit, 
as  in  case  of  idiocy;  or  to  the  use  of  the  party,  in  case  of  accidental 
madness  or  lunacy;  and  in  order  hereunto  there  issues  a  writ  (A-)  or 
commission  to  the  sheriff  or  escheator,  or  particular  commissioners, 
both  by  their  own  inspection  and  by  inquisition  to  inquire,  and  return 
their  inquisition  into  the  Chancery;  and  thereupon  a  grant  or  com- 
mitment of  the  party  and  his  estate  ensues ;  and  in  case  the  party  or 
his  friends  find  themselves  injured  by  the  finding  him  a  lunatic  or 
idiot,  a  special  writ  may  issue  to  bring  the  party  before  the  chancel- 
lor, or  before  the  king  to  be  inspected.      Vide  Fitz.  N.  B.  233. (/) 

But  this  concerns  not  the  purpose  in  hand  ;  for  whether  the  party 
that  is  supposed  to  commit  a  capital  offence  be  thus  found  an  idiot, 
madman  or  lunatic,  or  not,  yet  if  really  he  be  such,  he  shall  have 
the  privilege  of  his  idiocy,  lunacy,  or  madness,  to  excuse  him  in 
capitals. 

Secondly  therefore,  the  trial  of  the  incapacity  of  a  party  indicted 
or  appealed  of  a  capital  offence  is,  upon  his  plea  of  not  guilty,  by  the 
jury  upon  his  arraignment,  who  are  to  inquire  thereupon  touching 
such  incapacity  of  the  prisoner,  and  whether  it  be  to  such  a  degree, 
as  may  excuse  him  from  the  guilt  of  a  capital  offence. (m) 

In  presumption  of  law,  every  person  of  the  age  of  discretion  is  pre- 
sumed of  sune  memory,  unless  the  contrary  be  proved ;  and  this 
holds  as  well  in  cases  civil  as  criminal. 

Again,  if  a  man  be  a  lunatic,  and  hath  his  hicida  inter- 
valla,  and  this  be  sufficiently  proved,  yet  the  law  presumes   [  34  ]| 
the  acts  or  offences  of  such  a  person  to  be  committed  in  those 
intervals,  wherein  he  hath  the  use  of  reason,  unless  by  circumstances 
or  evidences  it  appears  they  were  committed  in  the  time  of  his  dis- 
temper; and  this  also  holds  in  civils  as  well  as  in  criminals. 

And  although  in  civil  cases,  he  that  goes  about  to  allege  an  act 
done  in  the  time  of  lunacy,  must  strictly  prove  it  so  done,  yet  in 
criminal  cases  (where  the  court  is  to  be  thus  far  of  counsel  with  the 
prisoner,  as  to  assist  him  in  matters  of  law  and  the  true  stating  of  the 
fact)  if  a  lunatic  be  indicted  of  a  capital  crime,  and  this  appears  to 
the  court,  the  witnesses  to  prove  the  fact  may  and  must  also  be 
examined,  whether  the  prisoner  were  under  actual  lunacy  at  the  time 
of  the  offence  committed. 

A  man  that  is  surdus  <^'  mntns  a  nativitate,  is  in  presumption  of 
law  an  idiot,  and  the  rather,  because  he  hath  no  possibility  to  under- 
stand what  is  forbidden  by  law  to  be  done,  or  under  what  penal- 
ties :(/i)  but  if  it  can  appear,  that  he  hath  the  use  of  understanding, 
which  many  of  that  condition  discover  by  signs  to  a  very  great  mea- 

(Jc)  Sec  Stamf.  Preronr.  33.  6.  (Z)  N.  Edit.  517. 

(m)  S-ivil.  oU.  1.  And.  107. 

{n)  Vide  Leg.  Alfredi,  l.li.  B.  Corone  101  Sf  217. 


34  HISTORY  PLACITORUM  CORONA. 

sure,  then  he  may  be  tried,  and  isnffer  judgment  and  execution, 
though  great  caution  is  to  be  used  therein. (o)[4] 

I  come  now  to  apply  what  lias  been  said  to  the  various  natures  of 
capital  crimes. 

Jf  a  man  in  his  sound  memory  commits  a  capital  offence,  and  before 
his  arraignment  he  becomes  absolutely  mad,  he  ought  not  by  law  to 
be  arraigned  during  such  his  phrenzy,  but  be  remitted  to  prison  unti'I 
that  incapacity  be  removed;  the  reason  is  because  he  cannot  advis- 
edly plead  to  the  indictment;  and  this  holds  as  well  in  cases 
[  35  ]  of  treason,  as  felony,  even  though  the  delinquent  in  his  sound 
mind  were  examined,  and  confessed  the  otfence  before  iiis 
arraignment:  and  this  appears  by  the  statute  of  33  H.  8.  cap.  20. 
which  enacted  a  trial  in  case  of  treason  after  examination  in  the 
absence  of  the  party;  but  this  statute  stands  repealed  by  the  statute 
of  1  4' 2  Phil.  4'  Mar.  cap.  10  Co.  P.  C.p.  6.  And  if  such  person 
after  his  plea,  and  before  his  trial,  become  of  non  sane  memory,  he 
shall  not  be  tried;  or,  if  after  his  trial  he  becomes  of  7ion  sane 
memory  he  shall  not  receive  judgment;  or,  if  after  judgment  he  be- 
comes oi  non  sane  memory,  his  execution  shall  be  spared;  for  were 
he  of  sound  memory,  he  might  allege  somewhat  in  stay  of  judgment 
or  execution.  Co.  P.  C.  4.{p) 

(o)  According  to  43  Assis.  pi.  30.  and  8  H.  4.  2,  if  a  prisoner  stands  mute,  it  shall  be 
inquired,  wlietlier  it  be  wilful  or  by  the  act  of  God;  from  whence  Crompton  infers,  that 
if  it  be  by  the  act  of  God  he  shall  not  suffer.  Crompt.  Just.  29.  a.  But  if  one  who  is  both 
deaf  and  dumb,  may  discover  by  signs  that  he  hath  the  use  of  understanding,  much  more 
may  one,  who  is  only  dumb,  and  consequently  may  be  guilty  of  felony,  sed  qucere,  how 
lie  shall  be  arraigned. 

(j})  See  Sir  John  Ha7vles''s  Remarks  on  Bateman's  trial.     State  Trials,  Vol.  4. p.  205. 

[4]  It  may  be  observed  that  from  the  humane  exertions  of  many  ingenious  and  able 
persons,  and  from  the  extensive  charitable  institutions  for  the  instruction  of  the  deaf  and 
dumb,  many  of  tiicse  unfortunate  people  have  at  the  present  day  a  very  perfect  know- 
ledge of  right  and  wrong.  In  Steel^s  case,  1  Leach,  451,  a  prisoner  wlio  could  not  hear 
and  could  not  be  prevailed  upon  to  plead,  was  found  mute  by  the  visitation  of  God,  and 
then  tried,  found  guilty,  and  sentenced  to  be  transported.  And  in  Jones's  case,  1  Leach, 
102,  when  the  prisoner  who  was  indicted  for  stealing  in  a  dwelling  house  on  being  put  to 
the  Bar  appeared  to  be  deaf  and  dumb  and  the  jury  found  a  verdict,  "  Mute  by  the  visita;- 
tion  of  God  ;"  after  wliicli  a  woman  was  examined  upon  her  oatii  to  the  fact  of  her  being 
able  to  make  him  understand  what  otiiers  said,  which  she  said  slic  could  do  by  ilieans  of 
signs,  such  prisoner  was  arraigned,  tried  and  convicted  of  the  simple  larceny.  The 
proper  course  in  such  cases  is,  I.  To  swear  a  jury  to  determine  whether  tiie  prisoner  be 
mute  of  malice  or  by  the  visitation  of  God.  II.  Whether  he  be  able  to  jjlead.  III.  Whether 
he  be  sane  or  not;  on  which  issue  the  question  is,  whetlier  lie  is  of  sufficient  intellect  to 
comprehend  the  course  of  the  proceedings  on  the  trial  so  as  to  be  able  to  make  a  proper 
defence.  Rrx.  v.  Pritchard,  7.  C.  Sf  P.  303.  Rex.  v.  Dyson,  Id.  305.  n.  (a)  Per  Parke,  B. 
1  Lewin,  C.  C.  R.  M.S.  C.  In  Rex.  v.  Pritchard,  the  jury  were  sworn  on  each  of  the 
tliree  issues  separately.  See  Rex.  v.  Dyson,  for  tlic  form  of  tlic  oath  administered  to  the 
interpreter.  See  Thompsoji's  case,  2  Lrwin's,  C.  C.  R.  137,  where  tlie  prisoner  being 
deaf  and  dumb,  but  able  to  read,  llie  indictment  was  handed  to  him  with  the  usual  ques- 
tions written  uponpaper  and  lie  wrote  his  plea  on  paper.  Tlie  juror's  names  were  then 
lianded  to  him  witli  the  (piestion,  "  Whether  he  objected  to  any  of  tlicm  ?"  and  lie  wrote 
for  answer  "No."  The  Judge's  note  of  the  evidence  was  lianded  to  him  and  lie  was  aslied 
in  writing  if  iiC  had  any  (juestions  to  put.  1  Russ.  on  Vriiiics  7.  votr.  Snyder  v.  Nations, 
5  Illucf.  R.  2!)5.  I  (,'rcen.  on  Ev.  ^  3(if).  The  Pi-ojib  v.  M'Gee,  1  Denios,  N.  Y.  Rep.  19. 
Cum.  V.  Hill,  14.  Mass.  R.  207.   The  Stale  v.  Dcwolf.  8  Conn.  R.  93. 


HISTORIA  PLACITORUM  CORON^E.  35 

But  because  there  may  be  great  fraud  in  this  matter,  yet  if  the 
crime  be  notorious,  as  treason  or  murder^  the  judge  before  such 
respite  of  trial  or  judgment  may  do  well  to  impanel  a  jury  to  inquire 
ex  officio  touching  such  insanity,  and  whether  it  be  real  or  counter- 
feit. 

If  a  person  of  non  saiie  mcinory  commit  homicide  during  such  his 
insanity,  and  continue  so  till  the  tune  of  his- arraignment,  such  person 
shall  neither  be  arraigned  nor  tried,  but  remitted  to  gaol,  there  to 
remain  in  expectation  of  the  King's  grace  to  pardon  him.  26  ,dss.  27. 
3  E.  3.  Corone  351. 

But  it  seems  in  such  a  case  it  is  prudence  to  swear  an  inquest  ex 
officio,  to  inquire  touching  his  madness,  whether  it  was  feigned; 
and  thus  it  was  done  in  the  case  of  3  E.  3.  and  in  Somervile^s  case, 
Anderson's  Rep.  par.  1  n.  154.  But  in  case  a  man  in  a  phrenzy 
happen  by  some  oversight,  or  by  means  of  the  gaoler  to  plead  to  his 
indictment,  and  is  put  upwi  his  trial,  and  it  appears  to  the  court  upon 
his  trial,  that  he  is  mad,  the  judge  in  discretion  may  discharge  the 
jury  of  him,  and  remit  him  to  gaol  to  be  tried  after  ihe  recovery  of 
his  understanding,  especially  in  case  any  doubt  appear  upon  the 
evidence  touching  the  guilt  of  the  fact,  and  this  in  favorem  vitx; 
and  if  there  be  no  colour  of  evidence  to  prove  him  guilty,  or  if  there 
be  a  pregnant  evidence  to  prove  his  insanity  at  the  time  of  the  fact 
committed,  then  upon  the  same  favour  of  life  and  liberty  it 
is  fit  it  should  be  proceeded  in  the  trial,  in  order  to  his  ac-  f  36  ]] 
quittal  and  enlargement.  If  a  person  during  his  insanity 
commit  homicide  or  petit  treason,  and  recover  his  understanding, 
and  being  indicted  and  arraigned  for  the  same,  pleads  not  guilty,  he 
ought  to  be  acquitted;  for  by  reason  of  his  incapacity  he  cannot  act 
fclleo  animo.  12  H.  3.  Doiver  183.  Forfeiture  33.  21.  H.  7.  31.  b.  il 
ulera  quite,  that  is,  shall  be  found  not  guilty. 

And  it  is  all  one,  whether  the  phrenzy  be  fixed  and  permanent,  or 
whether  it  were  temf)orary  by  force  of  any  disease,  if  the  fact  were 
committed  while  the  party  was  under  that  distemper. 

In  the  year  166S,  at  Aylesbury,  a  married  woman  of  good  reputa- 
tion being  delivered  of  a  child,  and  having  not  slept  many  nights  fell 
into  a  temporary  phrenzy,  and  killed  her  infant  in  the  absence  of  anv 
company;  but  company  coming  in,  she  told  them  she  had  killed  her 
infant,  and  there  it  lay;  she  was  brought  to  gaol  presently,  and  after 
some  sleep  she  recovered  her  understanding,  but  marvelled  liow  or 
why  she  came  thither ;  she  was  indicted  for  murder,  and  upon  her 
trial  the  whole  matter  appearing,  it  was  left  to  the  jury  with  this 
du'ection,  that  if  it  did  appear,  that  she  had  any  use  of  reason  when 
she  did  it,  they  were  to  find  her  guilty;  but  if  they  found  her  under 
a  phrenzy,  though  by  reason  of  her  late  delivery  and  want  of  sleep, 
they  should  acquit  her ;  that  had  there  been  any  occasion  to  move 
her  to  this  fact,  as  to  hide  her  shame,  which  is  ordinarily  the  case 
with  such  as  are  delivered  of  bastard  children  and  destroy  them;  or 
if  there  had  been  jealousy  in  her  husband,  that  the  child  had  been 
none  of  his ;  or  if  she  had  hid  the  infant,  or  denied  the  fact,  these 
VOL.   I. — 5 


36  HISTORIA  PLACITORUM  CORONA. 

had  been  evidences  that  the  phrenzy  was  counterfeit;  but  none  of 
these  appearing,  and  the  honest}^  and  virtuous  deportment  of  the 
woman  in  her  health  being  known  to  the  jury,  and  many  circum- 
stances of  insanity  appearing,  the  jury  found  her  not  guilty,  to  the 
satisfaction  of  all  that  heard  it. 

Touching  the  great  crime  of  treason  regularly  the  same  is  to  be 
sard,  as  in  case  of  homicide,  such  a  phrenzy  or  insanity  as  excuseth 
from  the  guilt  of  the  one,  excuseth  from  the  guilt  of  th^  other:  the 
reason  is  the  same ;  he  that  cannot  act  felonice  or  animo  felonico 
cannot  act  proditorie,  for  being  under  a  full  alienation  of 
[]  37  J  mind,  he  acts  uoi  per  elect ioncm  or  intentionem.  This  ap- 
pears by  the  statute  of  33  H.  8.  cap.  20.  which,  though  it 
enact,  that  a  non  compos  mentis  shall  be  tried  for  treason,  yet  it 
expressly  declareih,  "  That  if  any  commit  high  treason,  while  they 
are  in  good,  whole,  and  perfect  memory,  and  after  examination  be- 
come non  compos  mentis  and  that  it  be  certified  by  four  of  the 
council,  that  at  the  time  of  the  treason  they  were  of  good,  sound, 
and  perfect  memory,  and  then  not  mad,  nor  lunatic,  and  afterwards 
became  mad;  then  they  shall  proceed  to  trial:"  which  strongly 
enforceth,  that  a  treason  cannot  be  committed  by  a  madman,  or 
Junatic,  during  his  lunacy. 

And  with  this  agrees  my  lord  Coke,  P.  C.  p.  6.  in  these  words, 
"He  that  is  no7i  compos  ?nentis,  and  totally  deprived  of  all  com- 
passings  and  imaginations,  cannot  commit  liigh  treason  by  compass- 
ing or  imagining  the  death  of  the  king:  for  fnriosics  solo  furore 
piiniler;  but  it  must  be  an  absolute  madness,  and  a  total  depriva- 
tion of  memory." 

This,  though  it  be  general,  yet  the  same  author  tells  us,  4  Rep.  124. 
b.  Beverly^s  case,  in  these  words,  "  Mes  in  ascun  cases  non  compos 
mentis  poit  committe  hault  treason,  come  si  il  tua,  o\\  oiler  a  tuer  le 
roy."  This  is  a  safe  exception,  and  I  shall  not  question  it,  because 
it  tends  so  much  to  the  safety  of  the  king's  person  :  but  yet  the  same 
author,  P.  C.  p.  6.  tells  us,  that  though  this  was  anciently  thought  to 
be  law,  yet  it  is  not  so  now ;  for  such  a  person  as  cannot  compass 
the  death  of  the  king  by  reason  of  Iiis  insanity,  cannot  be  guilty  of 
treason  within  the  statute  of  25  E.  3.  And  thus  far  concerning  the 
incapacity  of  idiocy,  madness,  and  lunacy. [5] 


[5]  Insanity  is  a  disease,  which  causes  the  patient  wliile  awake  to  mistake  the  phan- 
toms and  operations  of  itn agination  for  realiiies,  wliich  conscfiucntly  become  the  motives 
of'iiis  discourse  and  actions,  wiiilc  at  the  time  tliere  is  an  absence  of  any  bodily  disorder 
that  can  account  for  the  phenomena. 

Perhaps  the  best  definition  ot  Insanity  is  in  sir  Alexander  Critcliori's  Commentaries,  p. 
165.     Insane  persons  are  arranged  into  classes. 

1.  Maniacs,  who  are  under  a  j)hrenzy. 

2.  Lunatics,  having  lucid  intervals. 

3.  Mklancholics,  subject  to  constant  depression. 

4.  Monomaniacs,  under  a  delusion  upon  a  particular  subject. 

.').  I)(.:mkntki),  deprived  of  mind  by  grief,  sickness,  accidents,  or  old  age.  Chiitj/s 
Mcilical  Jurisprudence,  34.5. 

Lord  Coke  says,  "Many  times  the  Latin  word  expresses  the  true  meaning,  and  calletli 


HISTORIA  PLACITORUM  CORONA.  37 

htm  not  amens  demens  furiosus,  lunatics  fntuus  stultus,  or  the  like,  but  non  compoa 
mentis."     Co,  Lift.  247,  a, 

Bracton  says,  "ftiriosus  non  inielligit  quod  agit  et  animo  et  ratione  caret,  et  non  mul- 
tutn  distat  a  brutis."     Lib.  5,  420,  b. 

Lord  Hale  observes  correctly,  {ante  29,  30,)  that"  it  is  very  difficult  to  define  the  invisi. 
ble  line  that  divides  perfect  and  partial  insanity,  but  it  mubt  rest  on  circumstances  duly 
to  be  weighed  and  considered  by  judge  and  jury,  lest  on  tiie  one  side  there  be  a  kind  of 
inhumanity  towards  defects  of  human  nature,  or,  on  the  other  side,  too  great  an  indul- 
gence given  to  crimes." 

"  The  most  difficult  cases,"  said  Erskine  in  HadfieWs  trial,  "  are  where  reason  is  not 
wholly  driven  from  her  seat,  but  distraction  sits  down  upon  it  along  with  lier,  holds  her 
trembling  upon  it,  and  frightens  her  from  her  propriety.  Such  patients  are  victims  to 
delusion  of  the  most  alarming  description,  wliich  so  overpowers  the  faculties  and  usurps 
so  firmly  the  place  of  realities,  as  not  to  be  dislodged  and  shaken  by  the  organs  of  per- 
ception and  sense.  Delusion,  therefore,  where  there  is  no  phrenzy  or  raving  madness,  is 
the  true  character  of  insanity,  and  where  it  cannot  be  predicted  of  a  man  standing  for 
life  or  death  for  a  crime,  he  ouglit  not  to  be  acquitted." 

Some  rules  about  freeing  a  hmatic  from  criminal  responsibility  may  be  found  in  1  Col- 
linson  on  Lunacy,  473,  474.  477. 

There  must  be  an  absolute  dispossession  of  the  free  and  natural  agency  of  the  human 
mind.  The  prisoner  must  have  been  incapable  of  distinguishing  between  good  and  evil, 
and  of  compreTiending  the  nature  of  what  he  was  doing.  Being  a  lunatic  before  or  after 
the  act,  is  not  enouglr;  his  madness  must  be  complete  and  absolute  at  the  moment  when 
the  offence  was  committed. 

Cooper  expresses  the  same  rule.  "  The  insanity  must  be  distinct  and  manifest  at  the 
time  the  crime  was  committed."     Cooper''s  Med.  Jur.  381. 

So  Male  says.  Where  no  insanity  is  proved,  and  there  has  been  none  previously  ex- 
isting,  wliere  the  delinquent  has  acted  from  facts  and  existing  circumstances,  the  law 
does  not  protect  him.     Cooper''s  Med.  Jur.  255. 

Shelford,  froma  number  of  adjudged  cases,  thus  deduces  the  rule  of  law.  If  a  person 
liable  to  partial  insanity,  which  only  relates  to  particular  subjects  or  notions  upon  which 
he  talks  and  acts  like  a  madman,  still  has  as  much  reason  as  enables  him  to  distinguish 
between  right  and  wrong,  he  will  be  liable  to  that  punishment  wliich  the  law  attaches 
to  his  crime.     Shelford  on  Lunacy,  458. 

He  cites  lord  Ferrer^s  case,  10  HowelVs  Slate  Trials,  947;  Arnold''s  case,  16  Howell's 
State  Trials,  764;  Parker''s  case,  1  Collinson  on  Lunacy,  477;  Bellinghani's  case,  1 
Collinson  on  Lunacy,  636;  Oford's  case,  5  Carr  and  Payne,  168;  Bowler''s  case,  1  Col. 
lin^on,  673,  and  54  Annual  Register,  309. 

Sir  John  Milford  said,  in  Hadjield's  trial,  27  HowelVs  Slate  Trials,  1290,  "because  there 
is  a  natural  impression  on  the  mind  of  man  of  the  distinction  between  good  and  evil, 
which  never  entirely  loses  hold  of  the  mind  whilst  the  mind  has  any  capacity  whatever 
to  exert  itself,  nothing  but  total  and  absolute  debility  deprives  the  mind  of  any  man  of 
that.  If  conscious  of  the  act,  as  the  result  of  design  and  contrivance,  and  of  tlie  conse- 
qucnces  of  the  act,  is  there  not  a  moral  sense  which  indicates  criminal  responsibility/" 

"The  true  criterion  of  insanity,"  said  sir  John  Nichols,  ''  is  'delusion,"  and  he  cites 
Locke  on  the  Human  Understanding,  Book  2,  ch.  11,  §  13.  In  Dew  v.  Clark,  3  Addams 
90,  91.     Dementatioh  arising  from  unruly  passion,  is  no  excuse. 

Mr.  Chitiy  {p.  345)  thus  expresses  the  rule  of  law :  ''  The  true  test  of  insanity,  where 
there  is  no  phrenzy  or  raving,  is  the  absence  or  presence  of  delusion,  and  delusion  exists 
whenever  an  individual  once  conceives  something  extravagant  to  exist  which  has  no 
existence,  and  when  he  is  incapable  of  being  reasoned  out  of  that  absurd  conception. 
In  criminal  cases,  therefore,  the  question  is  simple,  adapted  to  tiie  comprehension  of 
every  juryman,  "whether,  at  the^  time  the  act  was  committed,  the  prisoner  was  incapa- 
ble  of  judging  between  right  and  wrong,  and  did  not  know  that  the  particular  act  was 
an  offence  against  the  laws  of  God  and  nature." 

He  adds,  "The  law  presumes  the  competency,  and  therefore  the  question  is  always 
presented  to  a  jury  upon  the  negative,  which  must  be  established  on  the  part  of  the 
prisoner;  the  burthen  of  proof  is  on  him." 

Mr.  Chitty  is  entirely  supported  by  I\Ir.  Erskine,  whom  he  quotes,  and  the  uniform 
tenor  of  authoritative  decisions  shows  that  no  better  rule  than  that  which  Erskine  laid 
down  in  HadfieUVs  trial  has  been  framed.  * 

To  deliver  a  lunatic  from  responsibility  to  criminal  justice,  said  he,  above    all,  in 


37  HISTORIA  PLACITORUM  CORONA. 

a  case  of  atrocity,  the  relation  between  the  disease  and  the  act  should  be  apparent,  the 
delusion  and  the  act  must  be  connected.  I  cannot  allow  the  protection  of  insanity 
to  a  man  who  exhibits  only  violent  passions  and  malignunt  resentments  acting  upon 
real  circumstances,  who  is  impelled  to  evil  from  no  morbid  delusion,  but  who  proceeds 
upon  the  ordinary  perceptions  of  the  mind.  See  Parker  arguendo  in  Roger^s  Trial, 
16-19. 

"  In  criminal  cases,  in  order  to  absolve  the  party  from  gfuilt,  a  higher  degree  of  insanity 
must  be  shown  than  would  be  sufficient  to  discliargc  him  from  the  obligations  of  his  con- 
tracts. In  these  cases  the  rule  of  law  is  understood , to  be  this;  that  'a  man  is  not  to  be 
excused  from  responsibility,  if  he  has  capacity  and  reason  sufficient  to  enable  him  to 
distinguish  between  right  and  wrong,  as  to  the  particular  act  he  is  then  doing ;  a  know- 
ledge and  consciousness  that  the  act  he  is  doing  is  wrong  and  criminal,  and  will  subject 
liiwi  to  punishment.  In  order  to  be  responsible  he  must  have  sufficient  power  of  memory 
to  recollect  the  relation  in  which  he  stands  to  others,  and  in  which  others  stand  to  him; 
that  the  act  he  is  doing  is  contrary  to  the  plain  dictates  of  justice,  and  right  injurious  to 
others,  and  a  violation  of  the  dictates  of  duty.  On  the  contrary,  although  he  maybe 
labouring  under  partial  insanity,  if  he  still  understands  the  nature  and  character  of  his 
act  and  its  consequences,  if  he  has  a  knowledge  that  it  is  wrong  and  criminal,  and  a 
mental  power  sufficient  to  apply  that  knowledge  to  his  own  case,  and  to  know  tliat  if  he 
does  the  act  he  will  do  wrong  and  receive  punishment,  such  partial  insanity  is  not  suffi- 
cient to  exempt  him  from  responsibility  for  criminal  acts.  If  then  it  is  proved  to  the 
satisfaction  of  the  jury,  that  tlie  mind  of  the  accused  was  in  a  diseased  and  \insound  state, 
the  question  will  be,  whether  the  disease  existed  to  so  high  a  degree,  that  for  the  time 
being,  it  overwhelmed  the  reason,  conscience,  and  judgment,  and  whether  the  prisoner 
in  committing  the  homicide,  acted  from  an  irresistible  and  uncontrolable  impulse;  if  so, 
then  the  act  was  not  the  act  of  a  voluntary  agent,  but  the  involuntary  act  of  the  body 
without  the  concurrence  of  a  mind  directing  it."     2  Greenl.  on  Evid.  §  372. 

The  question  of  insanjty  in  a  prisoner  is  a  question  for  the  jury,  and  ought  to  be 
clearly  made  out,  in  order  to  exempt  the  party  from  punishment.  Rex  v.  Arnold,  1 
Russ.  C.  Sf  M.  9. 

To  justify  the  aquittal  of  a  prisoner  indicted  for  murder,  on  the  ground' of*insanity,  the 
jury  must  be  satisfied  that  he  was  incapable  of  judging  between  right  and  wrong;  and 
that,  at  the  time  of  committing  the  act,  he  did  not  consider  that  it  was  an  otFcnce  against 
the  laws  of  God  and  nature.      Rex  v.  Offord,  5  Car.  i^  /'.  168. 

If,  to  an  indictment  for  treason  for  attempting  the  life  ofthe  sovereign^  by  shooting  at 
the  Queen,  the  defence  be  insanity,  the' question  for  the  jury  will  be,  whether  the' 
prisoner  was  labouring  under  that  species  of  insanity,  which  satisfies  them  that  he  was 
quite  unaware  ofthe  nature,  character,  and  consequences  ofthe  act  he  was  committing; 
or  in  other  words,  whether  he  was  under  the  influence  of  a  diseased  mind,  and  was 
really  unconscious  at  the  time  he  was  committing  tlie  act,  that  it  was  a  crime.  If  the 
jury  in  such  a  case  are  of  opinion  that  the  prisoner  did  not  in  fact  do  all  that  the  law 
deems  essential  to  constitute  the  offence  cliarged,  they  must  find  him  not  guilty  generally  ; 
and  the  Court  have  no  power  to  order  his  detention,  under  the  39  &  40  Geo.  3.  c.  94,  s.  2, 
although  the  jury  should  be  clearly  of  opinion,  that  the  prisoner  was  in  fact  insane. 
Such  a  state  of  circumstances  appearing  to  be  a  casus  omissus  in  the  act.  Reg.  v.  Oxford, 
9  Car.  Sf  P.  525. 

If  on  a  trial  the  defence  is  insanity,  a  witness  of  medical  skill  may  be  asked  whether 
such  and  such  appearances,  proved  by  otiier  witnesses,  are  in  his  judgment  symptonjs  of 
insanity.     Rex  v.  Wright,  R.  Sf  R.  C.  C.  456. 

Wiicre  a  prisoner's  defence  is  insanity,  a  medical  man  who  has  heard  the  trial,  may 
be  asked  whether  the  facts  proved,  show  symptoms  of  insanity.  Rex  v.  Searle,  I  M,  Sf 
Roh.  75. 

The  prisoner  was  indicted  for  shooting  at  his  wife  with  intent  to  murder  her,  &,c.,  and 
was  defended  by  counsel,  who  set  U[>  for  him  the  defence  of  insanity.  The  prisoner, 
however,  objected  to  such  a  defence,  asserting  that  he  was  not  insane  ;  and  he  was  allowed 
by  the  judge  to  suggest  questions,  to  be  put  by  his  lordshi|)  to  the  witnesses  for  the  pro- 
secution, to  negative  the  supposition  that  he  was  insane;  and  the  learned  judge  also,  at 
the  request  ofthe  priscmer,  allowed  additional  witnesses  to  be  called  on  his  behalf  for  tlie 
same  purpose.  Tiiey,  however,  failed  in  showing  that  the  dcfince  was  an  incorrect  one  ; 
and  on  the  contrary,  their  evidence  tended  to  establish  it,  more  clearly,  and  the  prisoner, 
H'as  acquitted  on  the  ground  of  insanity.     Reg.  v,  Piarce,  9  Car.  Sf  P,  667. 

A  party  having  been  indicted  for  a  misdemeanor,  in  uttering  seditious  words,  and  upon 


HISTORIA  PLACITORUM  CORONiE.  37 

his  arrai.inmcnt  refusing  to  plead,  and  showing-  symptoms  of  insanity  ;  and  an  inquest 
being  for'tliwith  takc-n  under  39  &  40  Geo.  3,  c.  1)4,  s.  2,  to  try  whetlicr  he  was  insane  or 
not: — Held,  first,  that  the  jury  might  form  their  own  judgment  of  the  present  state  of 
the  prisoner's  mind,  from  his  demeanor  while  the  inquest  was  being  taken ;  and  might 
thereupon  find  him  to  be  insane,  without  any  evidence  being  given  as  to  his  present 
state  : — Seeondly,  that  upon  the  prisoner  showing  strong  symptoms  of  insanity  in  Court 
during  the  taking  uf  the  inquest,  it  became  unnecessary  to  ask  him  whether  he  would 
cross-examine  the  witnesses,  or  would  offer  any  remark  on  the  evidence.  Reg.  v.  Goode, 
7  Ad.  Sf  E.  536. 

A  grand  jury  have  no  authority  by  law  to  ignore  a  bill  for  murder  on  the  ground  of 
insanity;  it  is  their  duty  to  find  the  bill;  otherwise  the  Court  cannot  order  the  detention 
of  the  party  during  the  pleasure  of  the  crown  either  on  arraignment  or  trial,  under  Utat. 
3y  &  40  Geo.  3,  c.  94,  ss.  1  &  2.  Reg.  v.  Hodges,  8  Car.  <^  P.  195. 

In  Massachusctls,  when  one  indicted  for  murder  would  make  no  distinct  plea,  and 
appeared  to  be  deranged,  a  jury  were  empanelled  to  try  whether  he  neglected  to  plead 
wilfully,  or  by  the  act  of  God  ;  and  on  the  finding  of  the  jury  that  it  was  for  the  latter 
reason,  the  court  remanded  him  to  jail.     Commonwealth  v.  Braley,  1  Mass.  103. 

"The  great  object  of  punishment  by  law,  (said  Chief  Justice  Shaw,  of  Massachusetts^ 
in  Roger's  case,)  is  to  atford  security  to  the  community  against  crimes,  by  [>unishing 
those  who  violate  the  laws;  and  this  object  is  accomplished  by  holding  out  the  fear  of 
punishment,  as  the  certain  consequence  of  such  violation.  Its  effect  is  to  present  to  the 
minds  of  those  who  are  tempted  to  commit  crime,  in  order  to  some  present  gratification, 
a  strqng  counteracting  motive  in  the  fear  of  punishment.  But  this  object  can  only  be 
accomplished  when  such  motive  acts  on  an  intelligent  being  capable  of  remembering 
that  the  act  about  to  be  committed  is  wrong,  contrary  to  duty,  and  such  as  in  any  well 
ordered  society  would  subject  the  offender  to  punishment.  It  might  in  some  respects  be 
more  accurate  to  say  that  the  party  thus  acting  under  a  temptation,  must  have  memory 
and  intelligence  to  recollect  and  know  that  the  act  he  is  about  to  commit  is  a  violation 
of  the  l;nv  of  the  land.  But  this  mode  of  stating  the  rnle  might  lead  to  a  mistake  of 
another  kind,  inasmuch  as  it  would  seem  to  hold  up  the  idea,  that  before  a  man  can  be 
justly  punished,  it  must  appear  that  he  knew  that  the  act  was  contrary  to  the  law  of  the 
land.  But  the  law  assumes  that  every  man  has  knowledge  of  the  laws  prohibiting 
crimes;  an  assumption  not  strictly  true  in  fact,  but  necessary  to  the  security  of  society, 
and  sulliciently  near  the  truth  for  practical  purposes.  It  is  expressed  by  the  well  known 
maxim,  ignorantia  legis  neminem  excusat — ignorance  of  the  law  cannot  be  pleaded  as  an 
excuse  for  crime.  The  law  assumes  the  existence  of  the  power  of  conscience  in  all  persons 
of  ordinary  intelligence — a  capacity  to  distinguish  between  right  and  wrong  in  reference 
to  particular  actions:  a  sense  of  duty  and  of  right.  It  may  also  be  safely  assumed  that 
every  man  of  ordinary  intelligence  knows  that  the  laws  of  society  are  so  framed  and 
administered,  as  to  prohibit  and  punish  wrong  acts — violation  of  duty  towards  others  — 
by  penalties  in  some  measure  adapted  to  the  nature  and  aggravation  of  the  wrong  and 
injurious  acts  thus  done.  If,  therefore,  it  happens  to  be  true  in  any  particular  ease,  that 
a  person  tempted  to  commit  a  crime  does  not  know  that  the  particular  act  is  contrary  to 
positive  law,  or  what  precise  punishment  the  municipal  law  annexes  to  such  act;  yet,  if 
the  act  is  palpably  wrong  in  itself;  if  it  be  manifestly  injurious  to  the  rights  of  another, 
as  by  destroying  his  life,  maiming  his  person,  taking  away  his  property,  breaking  into 
or  burning  his  dwelling-house,  and  the  like,  there  is  no  injustice  in  assuming  that  every 
man  knows  that  such  acts  are  wrong,  and  must  subject  him  to  punishment  by  law;  and, 
therefore,  it  may  be  assumed  for  all  practical  purposes,  and  without  injustice,  that  he 
knows  the  act  is  contrary  to  law.  This  is  the  ground  upon  which  tiie  rule  has  been 
Usually  laid  down  by  judges,  when  the  question  is  whether  a  person  has  sutHcient  men- 
tal capacity  to  be  amenable  for  the  commission  of  a  crime,  that  he  must  have  sufficient 
mental  capacity  to  distinguish  between  right  and  wrong,  as  applied  to  the  act  he  is  about 
to  commit,  and  to  be  conscious  that  the  act  is  wrong;  instead  of  saying,  that  he  must 
have  sufficient  capacity  to  know  that  it  is  contrary  to  the  law  of  the  land,  because  this 
power  to  distinguish  between  right  and  wrong  as  applied  to  the  particular  act — a  power 
which  every  human  being,  who  is  at  the  same  time  a  moral  agent  and  a  subject  of  civil 
government,  is  assumed  to  possess — is  the  medium  by  which  tliC  law  assumes  that  he 
knows  that  the  same  act  which  is  a  violation  of  high  moral  duty  is  also  a  violation  of  the 
law  of  the  land.  Whereas,  if  it  were  stated  that  a  person  must  have  sufficient  mental 
capacity  to  know  and  understand  that  the  act  he  is  about  committing  is  a  violation  of 
the  law  of  the  land,  it  might  lead  to  a  wrong  conclusion,  and  raise  a  doubt  in  regard  to 


37  HISTORIA  PLACITORUM  CORON.^. 

persons  igrnorant  of  tlie  law.  There  is  no  doubt  that  many  a  man  is  held  responsible  for 
crime,  and  that  rightfully,  who  might  not  know  that  the  act  he  was  about  committing 
was  contrary  to  tlie  law  of  the  land,  otherwise  than  as  a  moral  being  he  knows  that  it  is 
wrong — a  violation  of  the  dictates  of  his  own  natural  sense  of  right  and  wrong. 

To  recur,  then,  to  what  has  already  been  stated.  In  order  that  punishment  may  ope- 
rate by  way  of  example,  to  deter  others  from  committing  criminal  acts  when  under 
temptation  to  do  so,  by  presenting  a  strong  counteracting  motive,  the  person  tempted 
must  have  memory  and  intelligence  to  know  that  the  act  he  is  about  to  commit  is  wrong, 
to  remember  and  understand,  that  if  he  commits  the  act  he  will  be  subject  to  the  punish- 
ment, and  reason  and  will  to  enable  hiin  to  compare,  and  choose  between  the  supposed 
advantage  or  gratification  to  be  obtained  by  the  criminal  act,  and  the  impunity  from 
punishment  which  he  will  secure  by  abstaining  from  it. 

A  person,  therefore,  in  order  to  be  punishable  by  law,  or  in  order  that  his  punishment 
by  law  may  operate  as  an  example  to  deter  others  from  committing  criminal  acts  under 
like  circumstances,  must  have  sufficient  memory,  intelligence,  reason,  and  will,  to  enable 
him  to  distinguish  between  right  and  wrong  in  regard  to  the  particular  act  about  to  be 
done,  to  know  and  understand  that  it  will  be  wrong,  and  that  he  will  deserve  punishment 
by  commitiing  it. 

This  is  necessary  on  two  grounds:  1st.  To  render  it  just  and  reasonable  to  inflict 
punishment  on  the  accused  individual,  and  2d.  To  render  his  punishment  by  way  of 
example,  of  any  utility  to  deter  others  in  like  situations  from  doing  similar  acts,  by  hold- 
ing up  a  counteracting  motive  in  the  dread  of  punishment  which  they  can  feel  and  com- 
prehend. 

With  more  immediate  reference  to  the  case,  the  Chief  Justice  proceeded  as  follows: 
In  order  to  constitute  a  crime,  a  man  must  have  intelligence  and  capacity  enough,  to 
have  a  criminal  intent  and  purpose;  and  if  his  reason  and  mental  powers  are  either  so 
deficient  that  he  has  no  will,  no  conscience,  or  controlling  mental  power,  or  if  through 
the  overwhelming  violence  of  mental  disease,  his  intellectual  power  is  for  the  time  oblite- 
rated,  he  is  not  a  responsible  moral  agent,  and  is  not  punishable  for  criminal  acts.  But 
these  are  extremes  easily  distinguished,  and  not  to  be  mistaken.  The  dillicully  lies 
between  these  extremes  in  the  ease  of  partial  insanity,  where  the  mind  may  be  clouded 
and  weakened,  but  not  incapable  of  remembering,  reasoning,  and  judging,  or  so  per- 
verted by  insane  delusion,  as  to  act  under  false  impressions  and  influences.  In  these 
cases,  the  rule  of  law,  as  we  understand  it,  is  this:  A  man  is  not  to  be  excused  from 
responsibility  if  he  has  capacity  and  reason  sufficient  to  enable  him  to  distinguish  be- 
tween right  and  wrong  as  to  the  particular  act  he  is  then  doing,  a  knowledge  and  con- 
sciousness that  the  act  he  is  doing  is  wrong  and  criminal,  and  will  subject  him  to  punish- 
ment. In  order  to  be  responsible,  lie  must  have  sufficient  power  of  memory  to  recollect 
the  relation  in  which  he  stands  to  others,  and  in  which  others  stand  to  him;  that  the  act 
he  is  doing  is  contrary  to  the  plain  dictates  of  justice  and  right,  injurious  to  others,  and 
a  violation  of  the  dictates  of  duty.  On  the  contrary,  although  he  may  be  labouring  under 
partial  insanity,  if  he  still  understands  the  nature  and  character  of  his  act  and  its  conse- 
qucnces;  if  he  has  a  knowledge  that  it  is  wrong  and  criminal,  and  a  mental  power  suffi- 
cient to  a|iply  that  knowledge  to  his  own  case,  and  to  know  that  if  he  does  the  act  he 
will  do  wrong  and  receive  punishment,  such  partial  insanity  is  not  sufficient  to  exempt 
him  from  responsibility  for  criminal  acts.  If,  then,  it  is  proved  to  the  satisfaction  of  the 
jury,  that  the  mind  of  the  accused  was  in  a  diseased  and  unsound  state,  the  question  will 
be,  whether  the  disease  existed  to  so  high  a  degree  that  for  the  time  being  it  ovgrwlielmed 
the  reason,  conscience,  and  judgment;  and  whether  the  prisoner  committing  the  liomL- 
cidc  acted  from  an  irresistible  and  uncontrollable  impulse;  if  so,  then  the  act  was  not  the 
act  of  a  voluntary  agent,  but  the  involuntary  act  of  the  body  without  the  concurrence  of  a 
mind  directing  it.  The  character  of  the  mental  disease  relied  upon  to  excuse  the 
accused  in  this  case,  is  partial  insanity,  consisting  of  melancholy,  accompanied  by  delu- 
sion. The  conduct  may  be  in  many  respects  regular,  the  mind  acute,  and  tlie  conduct 
a[)()arcntly  governed  by  rules  of  propriety,  and  at  the  same  time  there  may  be  insane 
delusion,  by  which  the  niiiul  is  perverted.  The  most  common  in  these  cases  is  that  of 
monomania,  where  the  mind  broods  over  one  idea,  and  cannot  be  reasoned  out  of  it. 
This  may  operate  as  an  excuse  for  a  criminal  act  in  one  of  two  modes.  Either  the  delu. 
sion  is  such  that  the  |)erson  under  its  influence  has  a  real  and  firm  belief  of  some  fact, 
not  true  in  itself,  but  which  if  it  were  true,  would  excuse  his  act ;  as  where  the  belief  is 
that  the  party  killed  had  an  immediate  design  upon  his  lilc,  and  under  that  belief  the 
iasane  man  killed  him  in  supposed  self-defence.     A  common  instance  is  where  he  fully 


HISTORIA  PLACITORUM  CORONA.  37 

t 

believes  that  the  act  he  is  doing  is  done  by  the  immediate  command  of  God,  and  he  acts 
under  the  delusive,  but  sincere  belief,  that  what  he  is  doing  is  by  the  command  of  a  supe- 
rior power,  which  supercedes  all  liuman  laws,  and  the  laws  of  nature;  or,  2d.  This  st;ite 
of  delusion  indicates  to  an  experienced  person  that  the  mind  is  in  a  diseased  slate,  that 
the  known  tendency  of  that  diseased  s^tate  of  mind  is  to  break  out  into  sudden  parox- 
ysms of  violence,  venting  itself  into  acts  of  homicide  or  other  violent  acts  towards  friend 
or  foe  indiscriminately,  so  that  although  there  was  no  previous  symptoms  and  indications 
of  violeHce,  yet  the  subsequent  act  connecting  itself  with  the  previous  symptoms  and 
indications,  will  enable  an  experienced  person  to  say  that  the  outbreak  was  of  such  a 
character,  that  for  the  time  being  it  must  have  overborne  memory  and  reason:  that  the 
act  was  the  result  of  the  disease,  and  not  of  a  mind  capable  of  choosing:  in  short,  that 
it  was  tlie  result  of  uncontrollable  impulse,  and  not  of  a  person  acted-  upon  by  motives, 
and  governed  by  the  will."  Roger's  Trial,  Boston,  1844,  ^.273.,  Charge  of  Ch.  Just.  Shaw. 

A  case  of  great  interest  and  importance  has  recently  occurred  in  England,  Reg.  v. 
McNaughton,  10  Clark  Sf  Fin.  210.  In  that  case,  the  following  questions  were  pro- 
pounded  to  the  judges  of  England  by  the  House  of  Lords: 

"1st.  What  is  the  law  respecting  alleged  crimes  committed  by  persons  afflicted  with 
insane  delusion  in  respect  of  one  or  more  particular  subjects  or  persons;  as,  for  instance, 
w^ere  at  the  time  of  the  commission  of  the  alleged  crime,  the  accused  knew  he  was  act- 
ing contrary  to  law,  but  did  the  act  complained  of  with  a  view,  under  the  influence  of 
insane  delusion,  of  redressing  or  avenging  some  supposed  grievance  or  injury,  or  of  pro- 
ducing some  supposed  public  benefit  ? 

"2d.  What  are  the  proper  questions  to  be  submitted  to  the  jury,  when  a  person  alle- 
ged to  be  afflicted  with  insane  delusion  respecting  one  or  more  particular  subjects  or 
persons,  is  charged  with  the  commission  of  a  crime,  (murder,  for  example,)  and  insanity 
is  set  up  as  a  defence? 

"  3d.  In  what  terms  ought  the  question  to  be  left  the  jury  as  to  the  prisoner's  state  of 
mind  at  the  time  when  the  act  was  committed? 

"  4th.  If  a  person  under  an  insane  delusion  as  to  existing  facts,  commits  an  offence  in 
consequence  thereof,  is  he  thereby  excused? 

"5th.  Can  a  medical  man,  conversant  with  the  disease  of  insanity,  who  never  saw  tlie 
prisoner  previous  to  the  trial,  but  who  was  present  during  the  whole  trial  and  the  exami- 
nation of  all  the  witnesses,  be  asked  his  opinion  as  to  the  state  of  the  prisoner's  mind  at 
the  time  of  the  commission  of  the  alleged  crime,  or  his  opinion  whether  the  prisoner  was 
conscious,  at  the  time  of  doing  the  act,  that  he  was  acting  contrary  to  law  ;  or  whether 
be  was  labouring  under  any  or  what  delusion  at  the  time?" 

The  joint  opinion  of  all  the  judges,  except  Mr.  Justice  Maule,  was  delivered  by  Lord 
Chief  Justice  Tindal,  as  follows: — "  My  Lords,  her  Majesty's  Judges,  with  the  exception 
of  Mr.  Justice  Maule,  who  has  statpd  his  opinion  to  your  Lordships,  in  answering  the 
qaestions  proposed  to  them  by  your  Lordship's  House,  think  it  right  in  the  first  place  to 
state  that  they  have  forborne  entering  into  any  particular  discussion  o])on  these  ques- 
tions, from  tlie  extreme  and  almost  insuperable  difficulty  of  applying  those  answers  to 
cases  in  which  the  facts  are  brought  judicially  before  them.  The  facts  of  each  particular 
case  must  of  necessity  present  themselves  with  endless  variety,  and  with  every  shade  of 
difference  in  each  case,  and  it  is  their  duty  to  declare  the  law  upon  each  particular  case 
on  facts  proved  before  them,  and  after  hearing  argument  of  counsel  thereon.  Tiiey  deem 
it  at  once  impracticable,  and  at  the  same  time  dangerous  to  the, administration  of  justice, 
if  it  were  practicable,  to  attempt  to  make  minute  applications  of  the  principles  involved 
in  the  answers  given  them  by  your  Lordships'  questions;  they  have  therelbre  confined 
their  answers  to  the  statements  of  that  which  they  hold  to  be  the  law  upon  the  abstract 
questions  proposed  by  your  Lordships;  and  as  they  deem  it  unnecessary  in  this  particu- 
lar  case  to  deliver  their  opinions  seriatim,  and  as  all  concur  in  the  same  opinions,  they 
desire  me  to  express  such  their  unanimous  opinion  to  your  Lordships, 

"  In  answer  to  the  first  question,  assuming  that  your  Lordships'  inquiries  are  confined 
to  those  persons  who  labour  under  such  partial  delusions  only,  and  are  not  in  other  re- 
spects insane,  we  are  of  opinion,  that  notwitlistanding  the  party  accused  did  the  act 
complained  of  with  a  view  under  the  influence  of  insane  delusion,  of  redressing  or  aveng. 
ing  some  supposed  grievances  or  injury,  or  of  producing  some  public  benefit,  he  is, 
nevertheless,  punishable  according  to  the  nature  of  the  crime  comn)ittcd,  if  he  knew  at 
tl»e  time  of  committing  such  crime  that  he  was  acting  contrary  to  law, — by  which  ex- 
pression we  understand  your  Lordships  to  mean,  the  law  of  the  land.  As  the  third  and 
Iburth  questions  appear  to  us  to  be  more  conveniently  answered  together,  we  have  to 


280980 


37  HISTORIA  PLACITORUM  CORONA. 

I 

submit  our  opinion  to  be,  tbat  the  jury  ongfht  to  be  told  in  all  cases,  that  every  man  ia 
presumed  to  be  sane  and  to  possess  a  sutHcient  degree  of  reason,  to  be  responsible  fur  his 
crimes,  until  tiie  contrary  be  proved  to  tlicir  satistiiction;  and  that  to  establish  a  defence 
on  the  ground  of  insanity,  it  must  be  clearly  proved,  that  at  the  time  of  committing  the 
act,  the  party  accused  was  labouring  under  such, a  defect  of  reason  from  disease  ot  the 
mind  as  nol  to  know  the  nature  and  quality  of  the  act  he  was  doing,  or  if  he  did  know 
it,  ttiat  he  did  not  know  that  lie  was  doing  what  was  wrong.  The  mode  of  putting 
the  latter  part  of  the  question  to  the  jury  on  tliese  occasions  has  generally  been,  whether 
the  accused  at  the  time  of  doing  the  act,  knew  the  difference  between  right  and  wrong ; 
which  mode,  though  rarely,  if  ever,  leading  to  any  mistake  with  the  jury,  is  not,  as  we 
conceive,  so  accurate  when  put  generally  and  in  tlie  abstract,  as  when  put  with  reference 
to  the  party's  knowledge  of  right  and  wrong  in  respect  to  the  very  act  with  which  he  is 
ciiarged.  If  the  question  were  to  be  put  as  to  the  knowledge  of  the  accused  solely  and 
exclusively  with  reference  to  the  law  of  the  land,  it  might  tend  to  confound  tlie  jury,  by 
inducing  them  to  believe  that  an  actual  knowledge  of  the  law  was  essential  in  order  to 
lead  to  a  conviction ;  whereas  the  law  is  administered  upon  the  principle  that  every  one 
must  be  taken  conclusively  to  know  it,  without  proof  that  he  does  know  it.  If  the  ac- 
cused were  conscious  thai  the  act  was  one  which  he  ought  not  to  do,  and  if  that  act  was 
at  the  same  time  contrary  to  the  law  of  the  land,  he  is  punishable;  and  the  usual  course, 
therefore,  has  been  to  leave  the  question  to  tiie  Jury,  whether  the  party  accused  had  a 
sufficient  degree  of  reason  to  know  that  he  was  doing  an  act  that  was  wrong ;  and  this 
course  we  think  is  correct,  aceOinpanied  with  such  observations  and  explanations  as  the 
circumstances  of  each  particular  case  may  require.  The  answer  to  the  fourth  question 
must,  of  course,  depend  on  the  nature  of  the  delusion;  but,  making  the  same  assumption 
as  we  did  before,  namely,  that  he  labours  under  such  a  partial  delusion  only,  and  is  not  in 
other  respects  insane,  we  think  he  must  be  considered  in  the  same  situation  as  to  responsi- 
bility, as  if  the  facts  with  respect  to  which  the  delusion  exists  were  real.  For  example,  if 
under  the  influence  of  delusion,  he  supposes  another  man  to  be  in  the  act  of  attempting  to 
take  away  his  life,  and  he  kills  that  man,  as  he  supposes,  in  self  defence,  he  would  be 
exempt  from  punishment.  If  his  delusion  was,  that  the  deceased  had  inflicted  a  serious 
injury  to  his  character  and  fortune,  and  he  killed  him  in  revenge  for  such  supposed  in- 
jury,  he  would  be  liable  to  punishment.  In  answer  to  the  last  question,  we  state  to  your 
Lordships,  that  we  tiiink  the  medical  man,  under  the  circumstances  supposed,  cannot,  in 
strictness,  be  asked  his  opinion  in  the  terms  above  stated,  because  each  of  those  ques- 
tions  involves  the  determination  of  the  truth  of  the  facts  deposed,  on  which  it  is  for  the 
jury  to  decide;  and  the  questions  are  not  mere  questions  upon  a  matter  of  science,  in 
which  case,  such  evidence  is  admissible.  But  where  the  facts  are  admitted,  or  not  dis- 
puted, and  the  question  becomes  substantially  one  of  science  only,  it  may  be  convenient 
to  allow  the  question  to  be  put  in  that  general  form,  though  the  same  cannot  be  insisted 
on  as  a  matter  of  right."  Per  Tindal,  C.  J.  delivering  the  opinion  of  the  Judges  in, 
McAaiiphten's  Case,  10  CI.  S(  Fin.  200.  208.  Maule,  J.,  diss.  p.  204—208.  See  also 
Hansard's  Pari.  Debates,  Vol.  Ql.pp.  288.  714. 

In  a  late  case,  {Commonweallh  v.  Mosler,)  before  the  Supreme  Court  of  Pennsylvania, 
the  defence  of  insanity  was  set  up  on  an  indictment  for  murder,  and  discussed  at  great 
Ivngth.     Chief  Justice  Gibson, in  delivering  the  charge  to  the  jury,  said: 

"  Insanity  is  mental  or  moral — the  latter  being  sometimes  called  homicidal  mania,  and 
properly  so.  It  is  my  purpose  to  deliver  to  you  the  law  on  this  ground  of  defence,  and 
not  to  press  upon  your  consideration,  at  least  to  an  unusual  degree,  the  circumstances  of 
the  present  case,  on  which  the  law  acts.  A  man  may  be  mad  on  all  subjects;  and  then, 
though  he  may  have  glimmerings  of  reason,  he  is  not  a  responsible  agent.  This  is 
general  insanity;  but,  if  it  be  not  so  great  in  its  extent  or  degree  as  to  blind  him  to  the 
nature  and  consequences  of  his  moral  duty,  it  is  no  defence  to  an  accusation  of  crime. 
It  must  be  so  great  as  entirely  to  destroy  his  perception  of  right  and  wrong;  and  it  is 
not  until  that  perception  is  thus  destroyed,  that  he  ceases  to  be  responsible.  It  must 
amount  to  delusion  or  hallucination,  controlling  his  will  and  making  the  commission  of 
the  act,  in  his  api)rchcnsion,  a  duty  of  overruling  necessity.  The  most  apt  illustration 
of  the  latter  is  the  perverted  sense  of  religious  obligation,  which  has  caused  men  some- 
times to  sucrifice  their  wives  and  children. 

"  Partial  insanity  is  confined  to  a  particular  subject — the  man  being  sane  on  every 
other.  In  that  species  of  madness,  it  is  j)lain  that  he  is  a  responsible  agent,  if  he  were 
not  instigated  by  his  madness  to  perpetrate  the  act.  He  continues  to  be  a  legitimate 
subject  of  punishment,  although  he  may  have  been  laboring  undur  a  moral  obliquity  of 


HISTORIA  PLACITORUM  CORON.E.  37 

perception,  as  much  so  as  if  he  were  merely  laboring  under  ah  obliquity  of  vision.  A 
man  wliose  mind  squint'',  unless  impelled  to  crime  by  this  very  mental  obliquity,  is  as 
much  amenable  to  punishment  as  one  whose  eye  squints.  On  this  point,  there  has  been  a 
mistake  as  melancholy  as  it  is  popular.  It  has  been  announced  by  learned  doctors,  that, 
if  a  Jiian  has  the  least  taint  of  insanity  entering  into  his  mental  structure,  it  dischariies 
him  of  all  responsibility  to  the  laws.  To  this  monstrous  error  may  be  traced  both  the 
fecundity  in  homicides  which  has  dishonored  this  country,  and  the  immunity  which  has 
attended  them.  The  law  is  that,  whether  the  insanity  be  general  or  partial,  the  degree 
of  it  must  be  so  great  as  to  have  controlled  the  will  of  its  subject,  and  to  have  talien 
from  liim  the  freedom  of  moral  action. 

"  But  there  is  a  moral  or  homicidal  insanity  consisting  of  an  irresistible  inclination  to 
kill,  or  to  commit  some  other  particular  offence.  There  may  be  an  unseen  ligament 
pressing  on  the  mind,  drawing  it  to  consequences  which  it  sees,  but  cannot  avoid,  and 
placing  it  under  a  coercion  which,  while  lis  results  are  clearly  perceived,  is  incapable  of 
resistance.  The  doctrine  which  acknowledges  this  mania  is  dangerous  in  its  relations, 
and  can  be  recognized  only  in  the  clearest  cases.  It  ought  to  be  shown  to  have  beea 
habitual,  or  at  least  to  have  evinced  itself  in  more  than  a  single  instance.  It  is  seldom 
directed  against  a  particular  individual ;  but  that  it  may  be  so,  is  proved  by  the  case  of 
Jtbe  young  woman  who%'as  deluded  by  an  irresistible  impulse  to  destroy  her  child,  though 
aware  of  the  heinous  nature  of  the  act.  The  frequency  of  tliis  constitutional  malady  is 
fortunately  small,  and  it  is  better  to  confine  it  within  the  strictest  limits.  If  juries  were 
to  allow  it  as  a  general  motive  operating  in  cases  of  this  character,  its  recognition  would 
destroy  social  order  as  well  as  personal  safety.  To  establish  it  as  a  justification  in  any 
particular  case,  it  is  necessary  either  to  show,  by  clear'  proofs,  its  contemporaneous 
existence,  evinced  by  present  circumstances,  or  the  existence  of  an.  habitual  tendency 
developed  in  previous  cases,  becoming  in  itself  a  second  nature." 

The  jury  convicted  tlie  prisoner,  and  the  Court  was  unanimous  in  refusing  a  new  trial. 
Com.  V,  Mosler,  6  Penn,  L.  J.  93,  4  Barr.  Rep. 

The  leading  works  upon  the  medical  jurisprudence  of  insanity,  are  Esquirol  on  In. 
sanity;  Marc  de  la  Folic;  Ray  on  Insanity;  Winslow  on  the  Plea  af  Insanity;  Collin- 
son  on  Lunacy;  Shelford  on  Lunacy.  Taylor's  Med.  Jur.  {London,  1844.)  The  inquirer 
will  find  an  article  on  the  value  and  effect  of  medical  testimony  in  The  British  and 
Foreign  Mid.  Review  for  July,  1S43.  In  Roger's  Trial,  {Boston,  1844,)  reported  by 
Messrs.  Bigelow  ^  Bemis,  counsel  for  the  defendant,  will  be  found  all  the  leading  autho- 
rities, both  the  text  books  and  the  adjudged  cases,  many  of  them  learnedly  and  tho- 
roughly examined. 


CHAPTER  V. 

CONCERNI^'G    CASUALTY    AND    MISFORTUNE,    HOW    FAR    IT    EXCUSETH 

IN    CRIMINALS. 

I  COME  to  the  second  kind  of  accidental  defects,  viz.  casicallr/ 

and  misfortune,  and  to  consider  how  far  it  excuseth  :  and   |]  38  ]] 

first  we  are  to  observe  in  this,  and  Hkewise  in  some  other 

of  the  defects  before  and  hereafter  mentioned,  a  difference  between 

civil  suits,  that  are  terminated  z?v,  cornpensationem  damni  iUali,Q.\\di 

criminal  suits  or  prosecutions,  that  are  in  vindlclam  criminis  coni- 

?nissi. 

If  a  man  be  shooting  in  the  fields  at  rovers,  and  his  arrow  hurts 
a  person  standing  near  ihe  mark,  tlie.  party  hurt  shall  have  his  ac- 
tion of  trespass,  and  recover  his  daniages,  though  the  hurt  were  cas- 

VOL.  I.— 6 


38  HISTORIA  PLACITORUM  CORONA. 

iial;(fir)  for  the  party  is  damnified  by  him,  and  the  damages  are  but 
his  reparation  ;  but  if  the  party  had  been  killed,  it  had  been  /;er  infor- 
tunium, and  the  archer  should  not  suffer  death  for  it,  though  yet 
he  goes  not  altogetiier  free  from  all  punishment. (6)  6  E.  4.  7.  per 
Cateshy.{c) 

As  to  criminal  proceedings,  if  the  act  that  is  committed  be  simply 
casual,  and /?er  infortunium,  regularly  that  act,  which,  were  it  done 
ex  (inimi  intentione,  were  punishable  with  death,  is  not  by  the  laws 
of  England  to  undergo  that  punishment;  for  it  is  the  will  and  in- 
tention, that  regularly  is  required,  as  well  as  the  act  and  event,  to 
make  the  offence  capital. 

Now,  what  shall  be  said  thus  simply  casual,  and  what  the 
^  39  ]]   punishment,  will  be  at  large  considered,  when  we  come  to 
homicide /je/'  infortunium;  only  something  will  be  neces- 
sary to  be  said  thereof  here.  • 

If  a  man  do  ex  intent ione  and  voluntarily  an  unlawful  act  tending 
to  bodily  hurt  of  any  person,  as  by  striking  or  beating  him,  though 
he  did  not  intend  to  kill  him,  but  the  death  of  the  party  struck  doth 
follow  thereby  within  the  year  and  day  ;(</)  or  if  he  strike  at  one, 
and  missing  him  kills  another  whom  he  did  not  intend,  this  is  felo- 
ny(e)  and  homicide,  and  not  casualty  or  per  infortunium.  . 

So  it  is  if  he  be  doing  an  unlawful  act,  though  not  intending  bodily 
harm  of  any  person,  as  throwing  a  stone  at  another's  horse,  if  it  hit 
a  person  and  kill  him;  this  is  felony  and  homicide  and  not  per  infor- 
tunium;(f)  for  the  act  was  voluntary,  though  the  event  not  intended  ; 
and  therefore  the  act  itself  being  unlawful,  he  is  criminally  guilty  of 
the  consequence,  that  follows: 

But  if  a  man  be  doing  a  lawful  act  without  intention  of  any  bodily 
harm  to  any  person,  and  the  death  of  any  person  thereby  ensues,,  as 
if  he  be  cleaving  wood,  and  the  axe  tlies  from  the  helve,  and  kills  anr 
other,  this  indeed  is  manslaughter,  but  per  infortunium;  and  the 
party  is  not  to  suffer  death,  but  is  to  be  pardoned  of  course;  for  it 
appears  by  the  statute  of  Marlbridge,  cap.  2G.  that  it  was  not  done 

(a)  Hob.  134.  -  . 

{h)  For  he  forfeits  all  liis  goods  and  chattels.  2  //.  3.  18.  F.  Corone.  302.  2  Co.  Instit, 
14y.  3  Co.  Instit.  2:20.  Ey  llie  ancient  law  he  was  liable  to  make  the  same  recompense 
or  were^ild,  as  in  any  other  case  of  homicide;  e.  ff.  if  one  shooting  at  a  mark  should 
accidentally  wound  and  kill  anotlier,  he  was  nevertheless  to  pay  his  wercgild.  Leg.  H. 
2.  I.  88.  I.  90.  Legis  (nam  est  placitain,  qui  ivscienter  peccat,  scicntir  eintndet ;  but  by 
the  same  law,  if  one,  who  was  standing  on  a  tree  or  any  other  place,  where  lie  was  at 
work,  should  chance  to  full  on  another  passing  by,  he  was  not  to  pay  any  tiling,  but  was 
deemed  entirely  innocent,     b'ee  Wilk.  Leg.  AngloSax.  p.211,  27D. 

(c)  B.  Corone  148.     Trespass  310.     F.  Corone  354. 

(d)  The  reason  of  tliis  is,  because  the  law  doth  presume,  tlrat  after  the  year  and  day  it 
cannot  then  be  discerned,  wiiethcr  he  died  of  the  stroke,  or  a  natural  death.  3  Co.  Jnstit. 
53. 

(e;  The  like  in  the  case  of  maiiicm,  if  a  man  strike  at  one,  and  missing  him  mailiem 
another,  13  H.  7, 14.  a. 

(/^  II  H.  7.  23.  a. per  Fincux  Ch.  Just.  B.  Corone  229.  Froclamation  13.  22.  Assise 
pi.  71. 


HISTORIA  PLACITORUM  CORONA.  40 

per  feloninm;{g)  yet  the  laws  of   England  are  so  tender  of 

the  hfe  of  man,  and  to  make  men  very  cautions  in  all  their  [  40  ] 

actions  that  the  party,  ihough  his  life  be  spared,  yet  forfeits 

his  aoods,  and  must  expect  the  king's  grace  to  restore  them. 

There  happened  this  case  at  Teterhoroiigh:  Deer  broke  into  the 
corn  of  A.  and  spoiled  it  in  the  night  tiriie ;  A.  sets  his  servant  to 
watch  in  the  night  with  a  charged  gun  at  the  corner  of  the  field, 
commanding  him,  that,  when  he  heard  anything  rush  into  the  stand- 
ing corn,  he  should  shoot  at  that  place,  for  it  was  the  deer :  the  mas- 
■  ter  was  in  another  corner  of  the  field,  rushed  into  the  standing  corn  ; 
the  servant  according  to  his  master's  direction  shot,  and  killed  his 
master;  it  was  agreed  on  all  hands,  this  was  neither  petit  treason, 
nor  murder,  but  whether  it  were  simple  homicide,  or  ;;erz7?/br/?;«n/m, 
was  a  great  difficulty:  First,  the  shooting  was  lawful,  when  the  deer 
came  into  the  corn,  it  being  no  purlieu,  nor  proclaimed,  or  chased 
deer;  again,  the  error  of  the  servant  was  caused  by  the  master's  direc- 
tion, and  his  own  act ;  but  if  it  had  been  a  stranger  that  had  been 
killed  it  had  been  homicide,  and  not  misadventure ;  on  the  other  side, 
the  servant  was  to  have  taken  more  care,  and  not  to  have  shot  upon 
such  a  token  as  might  have  befallen  a  man  as  well  as  a  deer;  and 
therefore  for  the  omission  of  due  diligence,  and  better  inspection,  be- 
fore he  adventured  to  shoot,  it  might  amount  to  manslaughter,  and  so 
be  capital ;  and  this  seems  to  be  the  truer  opinion. 

But  in  the  case  of  Sir  WilUam  Haivksworth,  related  by  Baker  in 
his  chronicle  of  the  time  of  Edward  IV.  p.  223, (A)  he  being  weary  of 
his  life,  and  willing  to  be  rid  of  it  by  another's  hand,  blamed  his  par- 
ker  for  suffering  his  deer  to  be  destroyed,  and  commanded  iiim,  that 
he  should  shoot  the  next  n)an  that  he  met  in  his  park,  that  would 
not  stand  or  speak;  the  knight  himself  came  in  the  night  into  the 
park,  and  being  met  by  the  keeper  refused  to  stand  or  speak ;  the 
keeper  shot  and  killed  him,  not  knowing  him  to  be  his  master;  this 
seems  to  be  no  felony,  but  excusable  by  the  statute  of  Male- 
faclores  in  parcis,  for  the  keeper  was  in  no  fault,  but  his  [  41  ]] 
master;  but,  iiad  he  known  him,  it  had  been  murder. 

As  to  matter  of  high  treason,  where  the  life  of  the  king  is  concern- 
ed, it  is  not  safe  too  easily  to  admit  an  excuse  by  chance  or  misfor- 
tune ;  though  such  fact  cannot  be  treason,  that  was  purely  casual  and 
involuntary,  for  there  must  be  a  compassing  or  imagining  to  make 

(c)  Here  our  author  rightly  says  it  appears  by  the  statute  of  Marlhrid^e,  that  it  was 
not  teiony,  for  that  statute  only  supposes  it  not  to  be  felony,  but  does  not  make  that  not 
to  be  Iblony  which  was  so  before,  as  some  have  imagined.  "2.  Co.  Instit.  148,  315.  for  it 
appears  by  Magna  Charta  rap.  26.  which  was  before  the  statute  of  Marlhridgc,  that  he 
who  killed  another  per  infortunium,  was  in  no  danger  of  death.  Kel.  123.  nor  indeed 
could  it  be  felony,  it  not  being  done /e//eo  animo,  4  Co,  134  b.  The  design  of  that  statute 
was  fpiite  of  another  nature,  viz.  tliat  the  country  should  not  be  amerced  where  a  mau 
was  killed  per  infortunium,  for  at  that  time  murdr}im  peculiarly  signified  the  secret  pri- 
vate killing  of  a  man;  as  if  he  was  found  killed,  but  it  was  not  known  by  whom;  and 
tlius  it  is  defined  by  Bracton,  Lib.  III.  de  corona,  cap.  1  to  be  occulta  orcisio;  and  in  the 
laws  of  Henry  \.l.[)2.  murdritus  homo  dicebuter,  cujiis  iiUirfectio  ncsciebatur ;  and  in 
Dialo'jo  de  Scacrario,  Lib,  I.  cap.  10.  10.  murdrum  idem  est,  quod  absconditum. 

(//)  Sub  anno  1471. 


41  HISTORIA  PLACITORUM  CORONA. 

treason  ;  yet  a  treasonable  intention  may  be  disgnised  under  the  color 
of  chance,  and  the  safety  of  the  king's  life  is  of  highest  concernment. 

And  therefore  when  JValter  Tyrrel,  with  a  glance  of  an  arrow, 
from  a  tree  involnntarily,  as  Mattheiv  Paris{k)  tells  us,  killed  fVil- 
liuni  Rufus,\i  could  not  be  treason, (/)  because  there  was  no  purpose 
of  any  mischief,  and  he  shot  at  the  deer  by  the  king's  command  ;  yet 
the  fact  was  of  such  a  consequence,  that  he  fled  for  it,  which  was  a 
circumstance  that  might  probably  infer,  that  there  was  some  iil- 
intention,  which  might  make  him  guilty  of  treason,  and  not  barely 
accident.     Co.  P.  C.  p.  6. 

History  tells  us,  that  upon  a  solemn  just,  or  turnament  appointed 
by  Henrr/  II.  king  of  France,  upon  the  marriage  of  his  daughter,  the 
king  himself  would  needs  run,  and  commanded  the  earl  of  Montgom- 
ery to  run  against  him ;  the  earl's  lance  breaking  upon  the  king's 
cuirasse,  a  splinter  flew  into  the  king's  eye,  and  hit  it,  whereof  he 
died;  this  was  not  treason,  because  purely  accidental. [1] 


[  42  ]  CHAPTER  VI. 

CONCERNING     IGNORANCE,    AND    HOW    FAR    IT    PREVAILS,    TO    EXCUSE. 
IN    CAPITAL   CRIMES. 

Ignorance  of  the  municipal  law  of  the  kingdom,  or  of  the  penalty 

thereby  inflicted  upon  oflenders,  doth  not  excuse  any,  that  is  of  the 

age  of  discretion  and  campus  mcjilis,  from  the  penalty  of  the  breach 

(k)  p.  54.  (l)  Custumier  de  Normand.  cap.  14. 

[1]  Whenever  death  is  the  consequence  of  idle,  dangerous  and  unlawful  sports,  or  of 
heedless,  wanton  and  indiscreet  acts,  without  a  felonious  intent  the  party  causing  the 
death  is  guilty  of  manslaughter.  As  if  a  man  rides  an  unruly  horse  amongst  a  crowd  of 
people,  1  East,  P.  C231 ;  or  tlirows  a  stone,  or  slioots  an  arrow  over  a  wall  into  a  pub- 
lic or  frequented  street,  post  paire  475,  or  discharging  his  pistols  into  a  public  street  up- 
on alighting  from  his  carriage,  1  Stra.  481  :  in  any  of  these  cases,  thougli  the  party  may 
be  perfectly  innocent  of  any  mischievous  intent,  still  if  death  ensues  lie  is  guilty  of  man- 
slaughter. So,  if  the  pvvner  suffers  to  be  at  large  any  animal  which  he  knows  to  be  vi- 
cious  and  mischievous,  and  it  kills  a  man,  it  has  been  thought  by  some  that  he  may  be  in- 
dicted for  manslaughter;  but  it  is  well  agreed  that  he  is  guilty  of  a  hiorh  misdetncanor. 
2  Hawk.  P.  C.  c.  13,  §  8  ;  and  in  a  very  recent  case  of  that  kind.  Best,  C  J.  laid  down  as 
law,  "that  if  a  person  think  proper  to  keep  an  animal  of  this  description,  (a  bull)  knowing 
its'  vicious  nature,  and  another  person  is  killed  by  it,  it  will  be  manslaughter  in  the  own- 
er, if  nothiiiff  morfi  ;  at  all  events  it  will  he  an  aggravated  speciv&  of  muiisl an ghter  :  Black- 
man  v.  Simmonds,  3  Carr.  6^  Pay.  140.  If  workmen  in  the  ordinary  course  of  their 
business,  throw  rubbish  from  a  house  in  a  direction  in  which  persons  are  likely  to  pass, 
and  any  one  passing  is  killed,  this  is  manslaughter;  Ward's  case,  1  East  P.  C.  5J61,  262, 
2G3,  270;  Rex  v.  Marji/ii/,  G  Carr.  Sf  I'ay.  103.  As  to  .what  are  lawiul  sports,  see  Put- 
ton,  title  Riot,  4  Sleph.  Citinmcntaries  101,  4  Bl.  Coin.  183,  note  bij  Ri/land,  19  ed.  Land. 
1836.  The  cases  in  which  the  propriety  of  the  act  which  causes  the  injury,  the  man- 
ner of  doing  it,  or  the  circumstances  under  which  it  is  done,  arc  considered,  may  be  t()und 
1  Hawk  c.  29  s.  3  ;  Foster  262 ;  Rex  v.  Martin,  3  C.  S(  P.-2\l;  Hull's  case  1 664,  K,l. 
40;  1  Russell  769;  Rex  v.  Walhr,  1  C.  Sf  P.  320;  Rex  v.  Gree,  7  C.  &;  P.  156;  R.v. 
A^lrn  et  al.  7  C.  J^  P.  153;  4  hist.  251  ;  R<x  v.  Van  Batchcll,  3  C.  4-  P.  629;  Rex  v, 
Williamson,  3  C.  Sj  P.  635;  Rex  v.  Spiller,  5  C.  Sf  P.  333 ;  see  post,  c.  39  notes. 


HISTORIA  PLACITORUM  CORONA.  42 

of  it ;  because  every  person  of  the  age  of  discretion  and  compoa  men- 
tis is  bound  to  know  the  law,  and  presumed  so  to  do  :  Jgnoraiilia 
eornm,  qnx  qxds  scire  tenetur,  non  excusat.{a) 

But  in  some  cases  is;nnrantia  facti  doth  excuse,  for  such  an  ignor 
ranee  many  times  makes  the  act  itself  morally  involuntary;  and  in- 
deed many  of  the  cases  of  misfortune  and  casualty  mentioned  in  the 
former  chapter  are  instances  that  fall  in  with  this  of  ignorance :  I 
shall  add  but  one  or  two  more. 

It  is  known  in  war,  that  it  is  the  greatest  offence  for  a  soldier  to 
kill  or  so  much  as  to  assault  his  general:  ,  suppose  then  the  inferior 
otTicer  sets  his  watch,  or  sentinels,  and  the  general  to  try  the  vigilance 
or  courage  of  his  sentinels  comes  upon  them  in  the  night  in  the  pos- 
ture of  an, enemy,  (as  some  commanders  have  too  rashly  done)  the 
sentinel  strikes,  or  shoots  him,  tal«ng  him  to  be  an  enemy;  his  igno- 
rance of  the  person  excuseth  his  offence. 

In  the  case  of  Level  indicted  for  the  death  of  Frances  Freeman, 
the  case  was,  that  William  Level  being  in  bed  and  asleep  in  the 
night,  his  servant  hired  Frances  Freeman  to  help  her  to  do  her  work, 
and  about  twelve  of  the  clock  in  the  night  the  servant  going  to  let  out 
i^/Yince.s  thought  she  heard  thieves  breaking  open  the  door;  she  there- 
fore ran  up  speedily  to  her  master,  and  informed  him,  that  she  thought 
thieves, were  breaking  open  the  door;  the  master  rising  suddenly,  and 
taking  a  rapier,  ran  down  suddenly  ;  Frances  hid  herself  in 
the  b*ittery;  lest  she  should  be  discovered;  Leveies  \v\{e,  [  43  J 
spying  Frances  in  the  buttery,  cried  out  to  her  husband, 
'^Here  they  be,  that  would  undo  its."  Level  runs  into  the  buttery 
in  the  dark,  not  knowing  Frances,  but  thinking  her  to  be  a  thief,  and 
thrusting  with  his  rapier  before  him  hit  Frances  in  the  breast  mortal- 
ly, whereof  she  instantly  died.  This  was  resolved  to  be  neither  mur- 
der, nor  manslaughter,  nor  felony.  Vide  this  case  cited  by  justice 
Jo)ies,  F.  15  Car.  I.  B.  R.  Cro.  Car.  53S.     Cook's  case. 


CHAPTER  VII. 

TOUCHIXG    INCAPACITIES,  OR    EXCrSES    BY  REASOX  OF    CIVIL    SUBJEC- 

TIOX. 

I  COME  now  to  those  incapacities,  which  I  have  styled  civil,  and  to 
consider  how  far  they  indemnify  and  excuse  in  criminals,  and  crimi- 
nal punishments. 

And  first  concerr;ing  that,  which  ariseth  by  reason  of  civil  subjec- 
tion. 

And  this  civil  subjection  is  principally  of  the  subject  to  his  prince, 
the  servant  to  his  master,  the  child  to  liis  parent,  and  the  wife  to  her 
husband.     Somewhat  I  shall  say  of  each  of  these. 

I.  As  to  the  first  of  these  subjections,  the  subject  to  his  prince; 
it  is  regularly  true,  that  the  law  presumes,  the  king  will  do  no  wrong; 

(a)  Phwd.  343.  a. 


43  HISTORIA  PLACITORUM  CORON.^. 

neither  indeed  can  do  any  wrong;(r/)  and  therefore,  if  the  king  com- 
mand an  unlawful  act  to  be  done,  the  offence  of  the  instru- 
^  44  ^  nient  is  not  thereby  indemnified;(6)  for  though  the  king  is 
not  under  the  coercive  power  of  the  law,[l]  yet  in  manycases 
his  commands  are  under  the  directive  power  of  the  law,  which  con- 
sequently makes  the  act  itself  invalid,  if  unlawful,  and  so  renders  the 
instrument  of  the  execution  thereof  obnoxious  to  the  punishment  of 
the  law.  Vide  Slamf.  P.  C.  102.  b.{c)  yet  in  the  time  of  peace,  if  two 
men  combat  together  at  barriers,  or  for  trial  of  skill,  if  one  kill  the 
other  it  is  homicide;  but  if  it  be  by  the  command  of  the  king,  it  is 
said(o')  it  is  no  felony.  11  H.  1.  23.  a. 

II.  As  touching  the  civil  subjection  of  the  child,  or  servant ;  if 
either  of  them  commit  an  act,  which  in  itself  is  treason,  or  felony,  it 
is  neither  excused  nor  extenuateok  as  to  the  point  of  punishment  by 
the  command  of  his  master  or  parent;  for  the  command  is  void  and 
against  law,  and  doth  not  protect  either  the  commander  or  the  instru- 
ment, that  executes  it  by  such  command. (e) 

III.  As  to  the  civil  subjection  of  the  wife  to  the  htisbnnd:  though 
in  many  cases  the  command,  or  authority  of  the  husband,  either 
express  or  implied,  doth  not  privilege  the  wife  from  capital  punish- 
ment for  capital  offences;  yet  in  5ome  cases  the  indulgence  of  the  law 
doth  privilege  her  from  capital  punishment  for  such  ofiences,  as  are 
in  themselves  of  a  capital  nature;  wherein  tliese  ensuing  dilferences 
are  observable.  ♦ 

1.  If  a  feme  covert  alone  without  her  husband,  and  without  the 
coercion  of  her  husband,  commit  treason  or  felony,  though  it  be  but 
larceny,  she  shall  suffer  the  like  judgment  and  execution,  as  if  she 
were  sole  ;  this  is  agreed  on  all  hands.  Stamf.  P.  C.  Lib.  I.  cap.  19. 
15  ^.  2.  Corone  383. 

2.  But  if  she  commit  larceny  by  the  coercion  of  the  hus- 

[  45  ]  band,  she  is  not  guilty.  21  Ass.  AO;{f)  and  according  to 

some,  if  it  be  by  the  command  of  her  husband  Ibid.{g)  which 

seems  to  be  law,  if  her  husband  be  present ;( A)  but  not  if  her  husband 

be  absent  at  the  time  and  place  of  the  felony  comtnitted. 

3.  13ut  this  command  or  coercion  of  the  husband  doth  not  excuse 
in  case  of  treason,  nor  of  murder,»in  regard  of  the  heinousness  of 
those  crimes.  Mr.  Balton's  Just.  Ca.  104.(/)  And  hence  it  was  that 

(a)  Co.  Lit.  19.6.4. 

(/>)  As  if  one  man  arrest  anoUicr  merely  by  the  kinjr's  commandment,  that  shall  be  no 
excuse  to  hinl,  but  lie  is  nevertlielcss  liable  to  an  action  of  false  imprisonment.  16  //.  6. 
F.  MunHriiuns  de  fails  182.  1  //.  7.  t.  /i.  rrerogntir>e  139. 

(c)  Vide  liractim  Lib.  III.  Dv  nrtiniiihus,  cap  9. 

((/)  I'cr  Fineux  Cli.  Just,  but  Jiiuke  in  bis  abridgement  of  this  case,  Corona  229.  says, 
that  other  justices  in  the  time  of  IJcitrij  VIII.  denied  this  opinion  of  Fineux,  and  held, 
that  it  was  felony  to  kill  a  man  in  jusimir  iitid  the  like?  notwithstanding  the  command- 
ment of  the  king;  for  that  tlie  commandment  is  against  law.  3  Co.  List.  56.  160. 

(e)  DfiU.  Just.  Cap.  1.57.  N.  Edit. 

(/)  7''.  Corone,  199.  Uracton  de  Corone.  cap.  32.  §  9. 

(f)  Qiioiiiam  ipsa  superiori  suo  ohedire  dchet.  Leg.  Incc,  I.  57.  B.  Corone  108. 

(//)  l]ec;iuse  the  law  siipposes  her  to  be  then  under  the  coercion  of  her  husband.  Kel  31. 
(i)  TV.  Edit.  cap.  157.  ^ 

[IJ   The  People  v.  McLeod,  1  IliWs  Re  p.  377. 


HISTORIA  PLACITORUM  CORONA.  45 

in  the  cases  of  the  treasons  committed  by  Arden  and  Somerville{k) 
against  Queen  Elizabeth,  both  their  wives  were  attaint  oiliigh  trea- 
son, though  their  execution  was  spared;  and  yet  they  were  only 
assenters  to  their  husband's  treasons,  and  not  immediately  actors  in 
it,  and  so  were  principals  in  the  second  degree;  and  upon  the  same 
account  the  earl  of  Somersel  and  his  wife  were  both  attaint,  as  acces- 
saries before,  in  the  murder  and  poisoning  of  Sir  Thomas  Over- 
bury.{l)\_2] 
(k)  1  And.  p.  104.  (0  Stat.  Trials,  Vol.  I.  TV.  28  ^-  29. 

[2]  Somerville's  case,  1  And.  104,  which  is  the  only  case  where  husband  and  wife  have 
been  convicted  of  treason,  only  shows  that  a  wife  may  be  convicted  of  treason  with  her 
husband.  There  Arden  and  iiis  wife  were  cliarcred  with  procuring-  Sotnerville  to  destroy 
the  Queen,  and  both  found  guilty,  but  as  none  of  the  evidence  is  stated,  it  may  have  beea 
that  the  wife  was  the  instigator,  and  both  properly  convicted.  In  SomerseVs  case,  which 
is  the  only  case  of  a  wife  convicted  as  well  as  her  husband,  as  an  accessary  to  a  murder, 
according  to  3  Inst.  50,  the  Earl  and  Countess  were  indicted  as  accessaries  before  the 
fact,  to  tlie  murder  of  Sir  T.  Overhury,  the  wife  was  arraigned  alone,  first,  and  pleaded 
guilty,  and  being  asked  what  she  had  to  say  why  judgment  of  death  should  not  be  given 
against  her,  she  said,  "  I  can  much  aggravate  but  nothing  extenuate  my  fault."  {2  St, 
Tr.  957.)  Assuming,  therefore,  that  the  indictment  was  joint  against  both,  the  case  only 
proves  tlicLt  the  wife  may  properly  be  convicted  upon  her  own  confession,  which  indicates 
that  she  was  the  more  guilty  party  ;  as  it  is  clear  she  was  in  this  case.  See  Hume^s 
Hist,  Eng.  vol.  6,  |».  68,  &,c.  Bat  as  the  Earl  and  Countess  were  separately  arraigned, 
and  on  ditFurent  davs,  and  as  the  indictment  against  the  Earl,  as  recited  in  his  pardon, 
(2  St.  Tr.  1014,)  is  against  him  alone,  it  may  be  inferred  that  the  Countess  was  indict- 
ed alone;  if  so,  the  case  is  merely  that  of  a  wife  pleading  guilty  to  an  indictment  charg- 
ing her  alone  as  accessory,  and  unless  in  such  a  case  she  either  pleaded  that  she  com- 
mitted the  offence  in  company  witii  lier  husband,  (as  it  seems  she  may.  Post.  47,  M.  37 
Ed.  3  Rot.  34,)  or  such  appeared  to  be  the  case  upon  her  trial,  no  question  as  to  coercion 
could  arise.  In  Reg.  v.  Alison,  8  C.  S^  P.  418,  Mr.  J.  Paiteson  mentions  an  old  case 
where  a  husband  and  wife  intending  to  destroy  themselves,  took  poison  together,  the 
hujiband  died  but  the  wife  recovered,  and  was  tried  for  murder,  and  acquitted  solely  on 
the  ground  that  being  the  wife  of  the  deceased  she  was  under  his  control,  and  inasmuch 
as  the  proposal  to  commit  suicide  had  been  first  suggested  by  him,  it  was  considered 
that  she  was  not  a  free  agent;  but  I  know  from  the  best  authority,  (says  Mr.  Greaves, 
in  a  note  in  RusseWs  C.  <V  M.)  that  the  very  learned  judge  guarded  against  subscribing  to 
the  reason  given  for  this  decision.  Probably  the  case  referred  to  is  an  anonymous  one. 
Moor,  754,  where  it  is  said  the  question  was,  whether  it  was  murder  in  the  woman,  and 
the  Recorder  caused  the  special  matter  to  be  found,  but  no  decision  is  stated,  nor  have 
I  been  able,  (adds  Mr.  Greaves,)  to  find  the  case  elsewhere:  1  Russ.  on  Crimes,  18,  note. 
Before  Somerville''s  case,  26  Eliz.  and  Somersets  case,  A.  D.  1615,  tliere  seems  no  ex. 
ception  to  the  general  rule  that  the  coercion  of  the  husband  excuses  the  act  of  the  wife. 
(See  27  Ass.  4iJ ;  Stamf.  P.  C.  26,  27.  142;  Pzilion  de  Pace  Regis.  130;  Br.  Ah  Coron, 
108;  Filz  Ab.  Coron  130.  160.  199.)  But  after  those  cases  there  are  the  following 
exceptions  in  the  books: — Bac.  ]\!ax.  57,  excepts  treason  only;  Dalton,  147,  treason 
and  murder,  citing  for  the  laiter.  Mar,  Lect.  12,  (perhaps  some  reader  of  some  Inn  of 
Court,)  1  Hale  P.  C.  p.  45.  47,  treason,  murder,  and  liomicide;  and  p.  434,  treason, 
murder,  and#nanslaughter;  Keyling,  3],  an  obiter  dictvm,  murder  only  ;  Hiwli.  Ii.  1,  c. 
1,  s.  11,  treason,  murder,  and  robbery;  Black.  Commentaries,  vol.  i.  p.  444,  treason  and 
murder:  vol.  iv. p.  29,  treason  and  mala  in  se,  as  murder  and  the  like.  Hale,  there, 
fore,  alone  excepts  manslaughter,  and  Hawkins  introduces  robbery  without  an  authority 
for  so  doing;  and,  on  the  contrary,  in  Reg.  v.  Cruse,  8  C.  4'  P-  545,  a  case  is  cited 
where  Burrttngh,  J.,  held,  that  the  rule  extended  to  robbery.  It  seems  long  to  have  been 
considered  that  the  niere  presence  of  the  husband  was  a  coercion,  (see  4  Black  Com.  p. 
23.)  and  it  was  so  contended  in  Reg.  v.  Cruse;  and  Bac.  Max.  56,  expressly  states  that 
a  wife  con  neither  be  principal  nor  accessary  by  joining  with  her  husband  in  a  felony, 
because  the  law  intends  her  to  have  no  will,  and  in  the  next  page  he  says,  "  If  husband 
and  wite  join  in  committing  treason,  the  necessity  of  obedience  doth  not  excuse  the 
wife's  offence,  as  it  docs  in  felony."  Now  if  this  means  that  it  does  not  absolutely  excuse 
as  he  has  stated  in  the  previous  page,  it  is  warranted  by  Somerville^s  case,  which  shows 


45  HISTORIA  PLACITORUM  CORONA. 

4.  If  the  husband  and  wife  together  commit  larceny  or  burglary, 
by  the  opinion  of  Bracton,  Lib.  III.  cap.  32.  §  \0.{m)  botli  are 
guihy;  and  so  it  hath  been  practised  by  some  judges.  Vide  Dull, 
ubi  supra,  cap.  104.  and  possibly  in  strictness  of  law,  unless  the 

(/n)  And  Sect.  9.  and  Flefa,  Lib.  I.  cap.  38.  §  12,  13,  14.  especially,  Sifurtum  invenia- 
tur  sub  Clavibus  Uxoris.   Vide  Bracton  Sf  Fleta,  ibid,  and  LL^  Cnuti,  Z.  74.    ' 


that  a  wife  may  be  guilty  of  treason  in  company  with  her  husband,  and  which  would  be 
an  exceplion  to  the  general  rule  as  stated  by  Bacon.  So  also  would  the  conviction  of  a 
wife  with  her  husband  for  murder  in  any  case  be  an  exception  to  the  same  rule.  Dalton 
cites  the  exception  from  Bacon,  without  the  rule,  and  Hale  follows.  Dalton  and  the 
other  writers  follow  Hale;  and  it  seems  by  no  means  improbable  that  the  exceptions  of 
treason  and  murder,  which  seem  to  have  sprung  from  Somerville''s  and  SomerseVs  cases, 
and  vi'hich  were  probably  exceptions  to  the  rule  as  stated  by  Bacon,  have  been, continued 
by  writers  without  adverting  to  their  origin,  or  observing  that  the  presence  of  the  hus- 
band is  no  longer  considered  an  absolute  excuse,  but  only  affords  a  prima  facie  pre 
sumption  that  the  wife  acted  by  his  coercion.  See  the  argument  of  Mr.  Carrington,  .in 
Reg.  V.  Cruse,  8  C.  Sf  P.  541.  1  Russ.  on  Crimes,  18.  24.  Mr.  Greave''s  Notes,  Am. 
ed.  1845.  See  Com.  v.  Neat,  10  Mass.  R.  152.  Marlow  v.  Com.  1  Mass.  R.  347.  391. 
Com.  V.  Leicis,  1  Mete.  R.  151.  T/ie  People  v.  Townscnd,  3  HiWs  N.  Y.  R.  479.  The 
iState  V.  Harvey,  3  N.  Hamp.  R.  65.  Com.  v.  Trimmer,  I  Mass.  R.  476.  Jones  v.  The 
State,  5  Blackf.  (Ind.)  R.  141.  492.     Biirn's  Just.  tit.  Wife,  23th  Lond.  ed. 

There  is  no  doubt  that  in  all  misdemeanors  a  wife  may  be  jointly  convicted  with  Ijer 
husband,  as  she  may  be  proved  to  have  acted  voluntarily,  but  there  is  no  authority  that  the 
same  rule  as  to  coercion,  which  applies  to  felonies,  docs  not  extend  to  misdemeanors.  On 
the  contrary.  Rex  v.  Price,  8.  C.  cSj-  P.  19,  and  Anon.  Math.  Dig.  Cr.  Law  262,  show 
that  the  rule  applies  to  the  misdemeanor  of  uttering  base  coin,  and  the  reason  given  in 
Rex  V.  Dixon,  ID  Mud.  335,  and  Reg.  v.  Williams,  Sulk.  384,  as  to  tiie  keeping  of  gaming 
and  bawdy  houses,  that  the  wife  mny  probably  have  as  great,  nay  a  greater  share  in  the 
criminal  management  of  the  house,  tiian  the  liusband,  tends  to  show  that  in  order  to  convict 
the  wife,  she  must  be  acting  voluntarily  and  not  under  coercion.  In  Reg.  v.  Cruse,  8  C.  Sf 
P.  541,  the  wife  had  taken  a  very  active  part.  Reg.  v.  Williams,  and  Reg.  v.  Ingram, 
Salk.  384,  were  in  arrest  of  judgment,  and  therefore  the  Court  would  presume  if  necesr 
sary,  that  the  wife  had  acted  voluntarily  ;  and  Reg.  v.  Dixon,  was  on  demurrer,  and 
the  Court  would,  and  it  seems  did,  hold  the  indictment  good,^  because  it  might  be  proved 
that  the  wife  was  not  under  coercion.  There  is  no  autiiority,  therefore,  that  the  rule 
does  not  extend  to  misdemeanors,  and  the  tendency  of  the  authorities  certainly  is,  that  it 
does.     1  Russ.  on  Crimes,  19  note  (i),  5th  Am.  Ed.  1845. 

The  following  positions  seem  fairly  deducible  from  the  cases  upon  this  subject;  1st, 
There  is  no  objection  on  demurrer  to  an  indictment  which  charges  husband  and  wife 
jointly,  with  the  commission  of  an  offence;  for  the  indictment  is  joint  and  several,  and 
both  may  be  convicted,  if  it  appear  that  the  wife  was  not  acting  under  the  coercion  of  the 
husband  or  eitiier  of  them  ;  2dly,  'I'liere  is  no  objection  cither  in  arrest  of  judgment  or  on 
error,  to  the  joint  conviction  of  husband  and  wife  of  the  same  offence,  for  she  may  have 
been  the  instigator,  and  both  guilty;  3dly,  Upon  the  trial  of  husband  and  wife,  the 
prima  facie  presumption  is,  tiiut  she  acted  under  liis  coercion,  provided  he  were  actually 
present  at  tiie  lime  the  fch^ny  was  committed.  If,  tiierctorc,  nothing  appear  but  that  the 
felony  was  committed  w  hilc  they  were  both  togetiier,  she  jury  ought  to  be  directed  to 
acquit  the  wife  ;  4tlily  Tliis  jjresumption  is  prima  facie  only,  and  may  be  relutted  either 
by  showing  that  the  wife  wns  the  instigator  or  more  active  party,  or  that  the  husband 
though  present  was  incapable  of  coercing,  as  that  he  was  a  crip[)le,  and  bed  ridden,  or 
that  the  wife  was  the  stronger  of  the  two.  1  Russ.  on  Crimes,  21  note  (g),  4  Steph.C  .  81. 
The  Englisli  cases  will  be  found  in  1  Russ.  cited  sup.,  and  the  American  in  Wharton's 
Am.  Crim.  Law,  19,23. 

I'lic  following  passage  is  taken  from  the  Report  of  the  Massachusetts  Commissioners, 
appointed  "  to  reduce  so  much  of  the  Common  Law  as  relates  to  Crimes  and  Punish- 
nients  to  a  written  and  systematic  cotle:" 

"A  married  woman  is  presumed  not  to  act  under  compulsion  by  her  husband  in  the 
commis>ioii  of  treason,  murder,  or  robbery  in  his  presence.  In  respect  to  other  felonies, 
and  to  misdemeanors  committed  by  her,  or  to  which  she  is  accessary  before  the  fict,  in 
prcbcncc  of  her  husband,  and  in  which  lie  is  concerned,  she  is  presumed  to  act  under 


HISTORIA  PLACITORUM  CORONA.  45 

actual  coercion  of  the  husband  appear,  she  may  be  guilty  in  such  a 
cnse ;  for  it  may  many  times  fall  oat,  that  the  husband  doth  commit 
larceny  by  tlie  instigation,  though  he  cannot  in  law  do  it  by  the 
coercion  of  his  wife;  but  the  latter  practice  hath  obtained,  that  if  the 
husband  and  wife  commit  burglary  and  larceny  together,  the  wife 
shall  be  acquitted,  and  the  husband  only  convicted;  and  with  this 
agrees  the  old  book,  2  E.  3.  Corone  160.  And  this  being  the  modern 
practice  and  infavorem  vitasis  fittest  to  be  followed  ;  and  the  rather, 
because  otherwise  for  the  same  felony  the  husband  may  be  saved  by 
the  benefit  of  his  clergy,  and  the  wife  hanged,  where  the 
case  is  within  clergy  ;(?i)  though  I  confess  this  reason  is  but   (^  46  ^ 

(n)  The  reason  of  this  is,  because  a  woman  cannot  by  law  have  tlie  benefit  of  the 
clergy,  li  Co.  29.  b.  yet  in  Fitz.  Corone  461,  it  was  admitted,  that  a  woman  might  claim 
clerg-y;  however,  as  the  law  now  stands,  she  may  in  all  cases  have  the  same  benefit  by 
the  statute  of  3  4"  4  W.  Sf  M.  cap.  9.  §  7.  as  a  man  may  by  his  clergy.     See  post  c,  44  n, 

compulsion  by  him,  unless  such  presumption  is  precluded  by  the  kind,  nature,  or  charac- 
ter of  the  offence,  as  in  case  of  her  being  a  common  scold;  but  such  presumption  may 
be  rebutted  bv  the  circumstances  of  the  case,  or  bv  other  evidence.  Archb.,  P.  Q.  S.  80. 
Dick's  C,  i'Russ.  1G.  1  Hawk,  c.  1,  s.  12,  led.  Dixon  Sf  Wise's  C,  10  Mod.  375. 
Dult,  126. 

She  is  not  chargeable  with  instigating  her  husband  to  any  crime. 

She  is  not  chargeable  for  receiving  goods  stolen,  embezzled,  or  extorted  by  her  hus- 
band; nor  as  an  accessary  after  tlie  fact  to  the  commission  of  a  crime  by  her  husband. 

The  common  law  holds  the  wife  answerable  for  treason,  murder,  and  robbery  commit- 
ted by  her  in  presence  of  her  husband,  without  any  presumption  tliat  she  is  under  com- 
pulsion by  him.  In  respect  to  other  felonies,  and  to  misdemeanors  so  committed  by  her, 
the  doctrine  of  the  common  law  is  very  obscure.  It  is  most  frequently  laid  down  that 
she  is  presumed  to  be  under  compulsion  in  tiie  commission  of  otlier  felonies  in  his  pre- 
sence. But  it  is  distinctly  stated  by  Mr.  Deacon,  v.  2,  p.  1377,  and  by  Mr.  Archbdd, 
Pr.  Q.  S.,  81,  citing  1  Hale,  516,  that  this  presumption  may  be  rebutted  by  evidence  ta 
the  contrary.  And  yet  in  case  of  its  being  proved  that  the  wife  was  the  active  party  in 
receiving  stolen  goods  in  her  husband's  presence,  she  has  been  held  not  to  be  chargeable 
with  the  offence.  Draper's  C,  Ry.  ^-  M.  234,  cited  2  Deac.  178-9.  Archer's  C,  cited 
Archb.,  P.  Q.  S.  80,  which  is  a  direct  contradiction  of  the  above  doctrine ;  and  see  also 
Squire's  C,  1  Russ.  16,  ltd.,  cited  2  Deac.  1378,  which  was  the  case  of  an  apprentice 
being  starved  to  death  by  the  husband  and  wife.  By  the  Englishlaw,  this  presumption, 
though  confined  to  felonies,  has  a  very  wide  application,  since  the  catalogue  of  felonies  is 
in  England  much  extended  by  statutes.  It  is  implied  in  the  English  law,  though  no 
rule  is  emphatically  laid  down  to  that  effect,  that  the  presumption  is  applicable  to  mis- 
demeanors committed  by  the  wife  in  presence  of  her  husband.  Thus  Mr.  Deacon,  v.  2, 
p.  1378,  says,  "  In  inferior  misdemeanors,  there  is  another  exception  to  the  irresponsi- 
bilty  of  the  wife,  for  she  may  be  indicted  and  punished  with  her  husband  for  keeping  a 
brothel,  this  being  considered  to  be  an  offence  touching  the  domestic  economy  and  govern- 
ment of  the  house  in  which  the  wife  has  necessarily  a  principal  share."  This  distinctly 
implies  that,  the  presumption  extends  to  misdemeanors.  But  there  are  some  other 
misdemeanors  to  which  the  exception  seems  to  apply  more  obviously  than  to  that  of 
keeping  a  brothel.  In  case  of  perjury  by  the  wife,  though  the  husband  might  be  present 
at  the  time  of  her  testifying,  the  presumption  of  coercion  by  him  would  ordinarily  be 
absurd.  The  presumption  of  coercion  by  the  husband  is  also  limited  in  the  code  re- 
ported by  the  commissioners,  to  offences  by  the  wife  in  which  "the  husband  is  concerned," 
for  otherwise  the  law  would  make  the  husband  guilty  of  a  crime  committed  by  the  wife, 
though  he  should  endeavour  to  prevent  her  from  committing  it.  This  limitation  of  the 
presumptmn  is  not  known  to  be  stated  in  the  books  of  the  common  law,  but  it  can  hardly 
be  supposed  that  it  is  not  part  of  that  law,  though  the  language  in  which  the  presump. 
*^°"  's  "sually  stated  in  the  books  excludes  such  limitation.  1  Hawk,  c.  1,  led. 
Archb.  P.  Q.  S.  80,  81.  See  Hammond's  Project  of  a  Code  of  Forgery,  a.  G33,  p.  197. 
Six  v.  Cheeney,, Wright's  R.,  9.  Report  of  the  Penal  Code  of  Massachusetts,  c.  iv.  {Boston, 
lo44.) 

VOL.    I. — 7 


46  HISTORIA  PLACITORUM  CORONA. 

of  small  value,  for  in  manslaughter  committed  jointly  by  husband 
and  wife  the  husband  may  have  his  clergy,  and  yet  the  wife  is  not 
on  that  account  to  be  privileged  by  her  coverture. 

And  accordingly  in  the  modern  practice,  where  the  husband  and 
wile,  by  the  name  of  his  wife,  have  been  indicted  for  a  larceny,  or 
burglary  jointly,  and  have  pleaded  to  the  indictment,  and  the  wife 
convicted,  and  the  husband  acquitted;  merciful  judges  have  used  to 
reprieve  the  wife  before  judgment,  because  they  have  thought,  or  at 
least  doubted,  that  the  indictment  was  void  against  the  wife,  she  ap- 
pearing by  the  indictment  to  be  a  wife,  and  yet  charged  with  felony 
jointly  with  her  husband. 

But  this  is  not  agreeable  to  law,  for  the  indictment  stands  good 
against  the  wife,  in  as  much  as  every  indictment  is  as  well  several  as 
joint;  and  as  upon  such  an  indictment  the  wife  may  be  acquitted,  and 
the  husband  found  guilty,  so  e  converso  the  wife  may  be  convicted, 
and  the  husb^ind  acquitted;  for  the  indictment  is  in  law  joint,  or  sev- 
eral, as  the  fact  happens;  and  so  is  the  book  of  15  E.  2  Coronse  3S3, 
and  accordingly  has  been  the  frequent  practice  Vide  Dull,  ubi  siip. 
cap.  104,  where  there  are  several  instances  of  the  arraigning  of  hus- 
band and  wife  upon  a  joint  indictment  of  felony;  which,  if  by  law 
she  could  not  be  any  way  guilty,  had  been  erroneous,  for  the  indict- 
ment itself  had  been  insuflicient:  therefore,  though  the  former  prac- 
tice be  merciful,  and  cautious,  it  is  not  agreeable  to  law;  for,  tliough 
ordinarily  according  to  the  modern  practice  the  wife  cannot  be  guilty, 
if  the  husband  be  guilty  of  the  same  larceny  or  burglary;  yet  if  the 
husband  upon  such  an  indictment  be  acquitted,  and  the  wife  convict, 
judgment  ouglit  to  be  given  against  her  upon  that  indictment;  for 
every  indictment  of  that  nature  is  joint  or  several,  as  the  matter  falls 
out  upon  the  evidence.      Vide  22  E.  4.  7.(o) 

5.  But  if  the  husband  and  wife  together  commit  a  treason, 
r  47  ]]  murder,  or  homicide,  though  she  only  assented  to  the  trea- 
son, they  shall  both  be  found  guilty,  and  the  wife  shall  not 
be  acquitted  upon  the  presumption,  that  it  was  by  the  coercion  of  this 
husband,  for  the  odiousness,  and  dangerous  consequence  of  the 
crin)e;[3]  the  same  law  it  is,  if  she  be  accessary  to  murder  before 
the  fact. 

6.  If  the  husband  commit  a  felony  or  treason,  and  the  wife  know- 
ingly receive  him,  she  shall  neither  be  accessary  after  as  to  the  felony, 
nor  principal  as  to  the  treason,  for  such  bare  reception  of  her  hus- 
band; for  she  is  suh  pot  est  ate  viri.,  and  she  is  bound  to  receive  her 
husband  ;  but  otherwise  it  is,  of  the  husband's  receiving  the  wife 
knowingly  after  an  olfence  of  this  nature  committed  by  lier.(/;) 

"  M.  37.  E.  3.  Rot.  34.  Line,  coram  liege.  lUcardus  Dcy  t^-  Mar- 
fferia  Uxor  ejus  indictati,  pro  receptamento  felonum  ;  /l/c/r^fcr/V/ dicit, 
quod  indictamenlum  i)redict' super  predictam  Marge)'ia?n  facium  mi- 
Co)  B.  Charire  de  pardon  51.  {p)  Co.  P.  C.  108. 


[3]  See  note  ante  p.  47. 


HISTORIA  PLACITORUM  CORONA.  47 

nussufficiens  est,  eo  quod  praed'  3far^eria  tempore  quo  ipsa  dictosfel- 
ones  receptasse,  seu  eis  consentire  debuisset,fuit  cooperta  pra:d,  Ji/- 
cardo  viro  suo,  &  adliuc  est,  &  omnino  sub  poteslate  sua,  cui  ipsa  in 
nullo  contradicere  potuit :  &  ex  quo  nou  iuseritur  in  iudictamento 
praedicto,  quod  ipsa  aliqnod  malum  fecit,  nee  eis  consentivit,seu  ipsos 
felones  receptavit,  ignorante  viro  suo,  petit  judicium,  si  ipsa,  vivente 
viro  suOjde  aliquo  receptameuto  in  prrcsentia  viri  sui  occasionari  pos- 
sit. — Postea  viso  &  diligeuter  examinato  iudictamento  prsedicto  super 
praefatam  Murs^eriam  facto,  videtur  curias,  quod  indictamentum  illud 
minus  sufficiens  est  ad  ipsam  inde  ponere  responsuram :  Ideo  cesset 
processus  versus  earn  onininu,  &c." 

Upon  which  record  these  things  are  observable: 

1.  That  the  wife,  if  alone  and  without  her  husband,  may  be  acces- 
sary to  a  ielouy  post  fa chnn.  2.  But  she  cannot  together  with  her 
husband  be  accessary  to  a  felony  post  factum ;  for  it  shall  be  entirely 
adjudged  the  act  of  the  husband  ;  and  this  is  partly  the  reason,  why 
she  cannot  be  accessary  in  receipt  of  her  husband  being  a  felon,  be- 
cause she  is  sub  potestate  viri.  3.  That  in  this  case  she  was  not  put 
to  plead  to  the  indictment  not  guilty,  but  took  her  excep- 
tion upon  the  indictment  itself;  and  so  note  the  diversity  [43]) 
between  an  indictment  of  felony,  as  principal,  and  the  indict- 
nrent  of  her,  as  accessary  after;  for  in  the  former  case  she  shall  be 
put  to  plead  not  guilty  to  the  indictment,  though  it  appear  ki  the 
body  thereof,  that  she  is  covert.  4.  That  yet  the  indictment  stood 
good,  as  to  tiie  husband  ;  and  upon  this  consideration,  though  it  is 
true  the  husband  and  wife  may  be  guilty  of  a  treason,  as  is  before 
shown,  yet  it  seems,  she  shall  never  be  adjudged  a  traitor  barely  for 
receiving  her  husband,  that  is  a  traitor,  or  for  receiving  jointly  with 
her  husband  any  other  person  that  is  a  traitor,  unless  she  were  also 
consenting  to  the  treason,  for  it  shall  be  entirely  adjudged  the  act  of 
her  husband. 

It  is  certain  a  fetyie  covert  may  be  guilty  of  misprision  of  treason 
committed  by  another  man  than  her  husband:  but  whether  she  can 
be  guilty  of  misprision  of  treason,  if  she  knows  her  husband's  treason, 
and  reveal  it. not,  is  a  case  of  some  difficulty:  on  the  one  side,  the 
great  obligation  of  duty  she  owes  to  the  safety  of  the  king  and  king- 
dom, the  horridness  of  the  offence  of  treason,  and  the  great  danger 
that  may  ensue  by  concealing  it,  seems  to  render  her  guilty  of  n)is- 
prision  of  treason,  if  she  should  not  detect  it;  on  the  other  side,  it 
may  be  said,  she  is  sub  potestate  viri,  she  cannot  by  law  be  a  wit- 
ness against  her  husband,  and  therefore  cannot  accuse  him.  Ideo 
quxre.  But,  certainly,  if  she  consented  to  the  treason  of  her  husband, 
though  he  were  the  only  actor  in  it,  she  is  guihy  as  a  principal,  and 
hath  no  privilege  herein  by  her  coverture,  as  is  before  shown. 


49  HISTORIA  PLACITORUM  CORONA. 


CHAPTER  VIII. 

CONCERNING  THE  CIVIL  INCAPACITIES  BY  COMPULSION  AND  FEAR. 

I  JOIN  these  two  incapacities  together,  because  they  are  much  of  the 
same  nature,  as  to  many  purposes ;  and  how  far  these  give  a  privi- 
lege, exemption,  or  mitigation  in  capital  punishments,  is  now  to  be 
considered. 

First,  There  is  to  be  observed  a  difference  between  the  times  of 
war,  or  public  insurrection,  or  rebellion,  and  the  times  of  peace;  for 
in  the  times  of  war,  and  public  rebellion,  when  a  person  is  under  so 
great  a  power,  that  he  cannot  resist  or  avoid,  the  law  in  some  cases 
allows  an  impunity  for  parties  compelled,  or  drawn  by  fear  of  death, 
to  do  some  acts  in  tjiemselves  capital,  which  adrnit  no  excuse  in  the 
time  of  peace. 

M.  21  E.  3.  coram  Rege,  Rot.  101.  Line.''  "  Walter  deJiJyngton, 
and  divers  of  his  confederates  at  St.  Botolph's  Res;iam  potestatem 
assumentes,  &  ut  de  Guerra  insurgentes'  quendam  Thomam  de  Oke- 
ham  sutorem  in  capitaneum,  &  majorem  suum  eligerunt,"  seized  ou 
two  ships,  and  took  away  the  corn  ;(«)  appointed  a  bell  to  be  rung  ;(6) 
and  commanded,  that  at  the  ringing  thereof  ipsi  Sf  eorum  quilihet 
€sser0parati,  ^^e.  "  Et  plures  homines  villae  prsedictse,  qui  ad  male- 
ficia  sua  consentire  noluerunt,  ceperunt,  &  eos  sibi  jurare  fecerunt  ad 
imprisas  suas  manutenendas."  They  were  arraigned  upon  the  in- 
dictment, and  committed:  "  lUi,  qui  coacti  fnerunt  jurare,  dimittun- 
tur  per  manucaptionem  ;  &  illi,  qui  receperunt  denarios,  petunt  quod, 
ex  quo  patet  per  indictamentum  prsedictum,  quod  ipsi  coacti  fuerunt 
recipere  denarios  contra  voluntatem  suam,  petunt,  quod  possint  quieti 
recedere  ;  &  consideratum  est  per  curiam,  quod  nihil  mali  in 
[  50  3  his  reperitur ;  sed  quia  curia  nondum  advisatur,  dies  datus 
est  per  manucaptionem  ;  ideo  venit  jurata."  1  find  no  fur- 
ther proceeding  against  them. 

M.  7  H.  5.  cnram  Rege.  Rot.  20.  Here/,  cited  Co.  P.  C.  p.  10. 
Those,  that  supplied  with  victuals  '^'w  John  Oldcasile,  and  his  accom- 
plices then  in  rebellion,  as  is  said,  were  acquitted  by  judgment  of  the 
court ;  because  it  was  found  to  be  done  pro  timore  mortis,  8^-  quod 
rccesserunt,  qiunn  cito  jjotiieriint:  note,  it  was  only  furnishing  of 
victuals,  and  pro  timore  mortis,  which  excused  them :  for  afler  the 
battle  of  Evesham,  n\  49  //.  3.,  when  that  prudent  act  vi^as  made  for 
the  settling  of  the  kingdom,  called  Dictum  de  Keni/worth,  those,  iha.t 
were  drawn  to  assist  tlie  barons  against  the  king,  though  they  were 
not  put  into  the  rank  of  those  that  paid  five  years  value  of  their  lands 
for  their  assistance,  viz.  those,  that  gratis,  S,'  voluutarie,  ^-  non  coacti 
tniscriint  servitia  sua  contra  regem,  <§•  ejus  Jiiium;  yet,  it  seems, 
they  were  put  to  a  smaller  mulct ;  for  by  the  12th,  13th,  14th,  and  15th 

,     (fl)  One  liuiidrccl  and  twenty  quarters  ofcorn,  value  36Z. 
(6)  Quondam  eoinmunein  campanam  ordinaverunt  pulsari. 


HISTORIA  PLACITORUM  CORONA.  50 

articles:  "  Coacti,  vel  metu  ducti,  qui  veneriint  ad  bella,  nee  pugna- 
veruiit,  HOC  male  fecerunt ;  impotentes,  qui  vi  vel  metu  coacti  mise- 
ruiit  servitia  sua  contra  regem,  vel  ejus  filium  ;  coacti,  vel  metu  ducti, 
qui  fuerunt  deprgedatores,  &  cum  principalibus  prcedonibus  prseda- 
tiones  fecerunt,  &  quando  commode  potuerunt,  recesserunt,  &  ad 
domos  redierunt;  [emptores  scienter  rerum  alienarum  valorem  bo- 
norum,  quse  emerunt,  restituant,  &  in  misericordia  domini  regis  sint, 
quia  contra  justitiam  fecerunt,  quia  rex  inhibuit,  jam  dimidio  anno 
elapso;]  illi,  qui  ad  mandatum  comitis  Leycestrise  ingressi  sunt 
Northampton,  nee  pugnaverunt,  nee  malum  fecerunt,  sed  ad  Eccle- 
siatn  fugerunt,  quando  regem  venientem  viderunt,  &  hoc  sit  attinctum 
per  bonos,solvant,  quantum  valet  terra  eorum  per  dimidiura  annum; 
illi,  qui  ex  feodo  comitis  tenebant,sint  solum  in  misericordia 
domini  regis  :  impotentes,  &  alii  homines,  qui  nihil  mali  fe-  [  51  ] 
cerunt,  statim  rehabeant  terras  suas,  &  damna  recuperent  in 
curia  domini  regis." 

But  even  in  such  cases,  if  the  whole  circumstances  of  the  ease  be 
such,  that  he  can  sutliciently  resist,  or  avoid  the  power  of  such  rebels, 
he  is  inexcusable,  if  upon  a  pretence  of  fear,  or  doubt  of  compulsion, 
he  assist  them. 

Now  as  to  times  and  places  of  peace. 

If  a  man  be  menaced  with  death,  unless  he  will  commit  an  act  of 
treason,  murder,  or  robbery,  the  fear  of  death  doth  not  excusejiim, 
if  he  commit  the  fact;  for  the  law  hath  provided  a  sufficient  remedy 
against  such  fears  by  applying  himself  to  the  courts  and  officers  of 
justice  for  a  writ  or  precept  de  securitate pacis.{d) 

Again,  if  a  man  be  desperately  assualted,  and  in  peril  of  death, 
and  cannot  otherwise  escape,  unless  to  satisfy  his  assailant's  fury  he 
Avill  kill  an  innocent  person  then  present,  the  fear  and  actual  force 
will  not  acquit  him  of  the  crime  and  punishment  of  murder,  if  he 
commit  the  fact;  for  he  ought  rather  to  die  himself,  than  kill  an 
innocent :  but  if  he  cannot  otherwise  save  his  own  life,  the  law  per- 
mits him  in  his  own  defence  to  kill  the  assailant ;  for  by  the  violence 
of  the  assault,  and  the  offence  committed  upon  him  by  the  assailant 
himself,  the  law  of  nature,  and  necessity,  hath  made  him  his  own 
protector  cxi7n  debifo  moderamine  inculpatse  tulelse,  as  shall  be 
farther  showed,  when  we  come  to  the  chapter  of  homicide  se 
defendendo.{*) 

But  yet  farther,  it  is  true  in  cases  of  war  between  sovereign  princes 
the  law  of  nations  allows  a  prince  to  begin  hostility  with  such  a  prince 
that  designs  a  war  against  him;  and  if  the  fear  Tdc  real,  and  upon 
just  ground,  non  tantuni  de  potentid  sed  <§•  de  animq. —  Grot  de 
jure  belli  Sf  pacts,  Lib.  II.  cap.  22.  §  5.  he  may  prevent  the  other's 
actual  aggression,  and  need  not  expect,  till  the  other  actually  invade 
him,  when  possibly  it  may  be  too  late  to  make  a  safe  defence  ;  and 
the  reason  is,  because  they  are  not  under  any  superior,  that 
may  by  his  processor  interposition  secure  the  prince  against  [  52  ] 

(d)  See  this  writ  in  the  Register,  fol.  88.  b.  F.  N.  B.  Vet.  Edit.  79.  N.  Edit.  177, 
(•)  Postea  cap.  33. 


52  HISTORIA  PLACITORUM  CORONA. 

such  a  just  fear;   and  therefore  in  such  case  the  law   of  nations 
allows  a  prince  to  provide  for  his  own  safety. 

But  it  is  otherwise  between  subjects  of  the  same  prince  :  If  Jl. 
fears  upon  just  grounds,  that  B.  intends  to  kill  him,  and  is  assured, 
that  he  provides  weapons,  and  hes  in  wait  so  to  do ;  yet  without  an 
actual  assault  by  B.  upon  Ji.  or  upon  his  house,  to  commit  that  fact, 
Ji.  may  not  kill  B.  by  way  of  prevention ;  but  he  must  avoid  the 
danger  by  flight,  or  other  means;  for  a  bare  fear,  though  upon  a  just 
cause,  and  though  it  be  upon  a  fear  of  life,  gives  not  a  man  power  to 
take  away  the  life  of  another,  but  it  must  be  an  actual  and  inevitable 
danger  of  his  own  life ;  for  the  law  hath  provided  a  security  for  him 
by  flight,  and  recourse  to  the  civil  magistrate  for  protection  by  a  writ 
or  precept  de  securitate  pacts:  and  thus  far  touching  the  privilege  by 
reason  of  compulsion  or  fear.[l] 


CHAPTER  IX. 

CONCERNING  THE  PRIVILEGE  BY  REASON  OF  NECESSITY. 

Although  all  compulsion  carry  with  it  somewhat  of  necessity,  and 
abates  somewhat  of  the  voluntariness  of  the  act  that  is  done,  yet 
there  are  some  kinds  of  necessities,  that  are  not  by  any  external  com- 
pulsion or  force. 

Touching  the  necessity  of  self-preservation  against  an  injurious  as- 

[1]  An  apprehension,  though  ever  so  well  grounded,  of  having  property  wasted  or 
destroyed,  or  of  suffering  any  other  mischief  not  endangering  the  person,  will  afford  no 
excuse  for  joining  or  continuing  with  rebels.     Rex  v.  McGrowlher,  1  East.  P.  C.  71. 

But  it  is  otherwise  if  the  party  join  from  fear  of  death,  or  by  compulsion.  .  Rex  v. 
Gordon,  1  East.  P.  C.  71. 

'On  the  indictment  on  the  stal.  7,  and  8  Geo.  4,  c.  30,  s.  4,  for  breaking  a  threshing 
machine,  the  judge  allowed  a  witness  to  be  asked  whetiier  the  mob,  by  whom  the  ma- 
chine was  broken,  did  not  compel  persons  to  go  with  them,  and  then  compel  each  person 
to  give  one  blow  to  the  machine;  and  also  at  the  time  when  tiie  prisoner  and  himself 
were  forced  to  join  the  mob,  they  did  not  agree  together  to  run  away  from  the  mob  the 
first  opportunity.     Rex  v.  Cnitcliley,  5  Car.  i^*  P-  133. 

A.,  who  was  insane,  collected  a  number  of  persons  together,  who  armed  themselves, 
having  a  common  purpose  of  resisting  the  lawfully  constituted  authorities;  A.  having 
declared  that  he  would  cut  down  any  constable  who  came  against  him.  A.,  in  the  pre- 
sence of  C  and  D.,  two  of  the  persons  of  his  party,  afterwards  shot  an  assistant  of  a  con- 
stable, who  came  to  apprehend  A.  under  a  warrant : — Uv.ld,  that  C.  and  D.  were  guilty  of 
murder,  as  jjrinciplcs  in  the  first  degree,  and  that  any  apprehension  that  C.  and  L).  had  of 
personal  danger  to  tliemselves  from  A.  was  no  ground  of  defence  for  continuing  with 
iiiiii  after  he  had  so  declared  his  purpose ;  and  also  that  it  was  no  ground  of  defence  that 
A.  and  his  party  had  no  distinct  or  particular  object  in  view  when  they  assembled  together 
and  armed  themselves.     Reg.  v.  Tyler,  8  Cur  &  /'.  61G,  I'er  Demnan,  Ch.Just. 

The  apprehension  of  .personal  danger  does  not  furnish  any  excuse  for  assisting  in 
doing  ;iny  act  which  is  illegal. 

The  only  force  that  doth  excuse,  is  a  force  upon  the  person  and  present  fear  of  death  ; 
and  this  force  and  fear  must  continue  all  the  time  the  i)arty  forced  remains  with  the 
party  forcing.  It  is  incumbent  upon  men,  who  make  force  their  defence,  to  show  an 
actual  force,  and  that  they  joined  pro  liinorc  mortex,  et  rccesserunt  tjuam  celo  poliierunt. 
Fo.u.  Dis.  14,  5^16;  4  Sleph.  Com.  8384.  The  U.  S.  v.  Vigol,  2  Dull.  R.  346;  U.  S.  v. 
JIaskeU,  4  Wash.  C.  C  M.  402. 


HISTORIA  PLACITORUM  CORONA.  52 

sault  somewhat  has  been  said  in  the  last  chapter,  and  more  will  be 
said  hereafter  in  its  due  place:  I  shall  proceed  therefore  to  other 
instances. 

I'iie  necessity  of  the  preservation  of  the  peace  of  the  king- 
dom by  the  apprehending  notorious  malefactors  excuseth  [  53  ] 
some  acts  from  being  felony,  which  in  the  matter  of  them 
without  such  necessity  were  felony. 

If  a  thief  resist,  and  will  not  sutler  himself  to  be  taken  upon  hue 
and  cry  or  pursuit,  justiciari  se  iwhlit  permit tere,\{  he  b'e  killed  by 
the  pursuants,  it  is  no  felony  ;(a)  de  quo  vide  latins  infra. 

By  the  statutes  of  3  (§•  4  E.  6  cap.  5  and  1  Mar.  cap.  12.  If  there 
be  a  riotous  assembly  to  the  number  of  twelve  assembled  to  commit 
the  disorders  mentioned  in  those  acts,  the  justices  of  the  peace,  the 
sheriff,  mayor,  or  other  officer  of  any  corporation,  &c.  may  raise  a 
power  to  suppress  and  apprehend  them;  and,  if  they  disperse  not 
upon  proclamation,  if  any  of  the  rioters  be  killed,  or  maimed,  or  hurt 
by  tiie  justices,  &c.  or  those  assembled  by  them  to  suppress  the  riot, 
it  is  by  this  act  dispunishable. 

It  is  true,  this  act(6)  continued  only  during  queen  Elizabeth's  life, 
and  is  now  expired  ;(c)  but  although,  perchance,  as  to  the  killing  of 
such  persons,  as  do  not  presently  return  upon  proclamation  to  their 
homes,  it  needs  the  aid  of  an  act  of  parliament  to  indemnify  them  ; 
yet  if  they  attempt  any  riotous  act,  "and  cannot  be  otherwise  supprest, 
the  sheriff,  or  justice  of  the  peace  may  make  use  of  such  a  force  upon 
them  for  preservation  of  the  peace,  as  well  by  the  Common  law,  as 
by  the  statute;  quod  vide  in  ^nder.son''s  Rep.  part  2  n.  49  p.  67. 
Burton's  case  in  fine  ;  and  the  statute  of  13  //.  4.  cap.  7.  in  princi- 
pio,  and  2  H.  5.  cap.  8,  wiiereby  all  men  are  bound,  upon  warning, 
10  be  assistant  to  the  sheriff  and  justice  for  the  suppressing  of  riots 
even  by  force,  if  it  cannot  be  otherwise  effected;  so  that  the  clauses 
touching  this  matter  m  the  temporary  statutes  of  3  8,'  4  E.  6.  and  I 
Mar.  are  but  pursuant  to  the  law  and  former  statutes  for  necessity 
of  preserving  the  peace. 

Some  of  the  casuists,  and  particularly  Covarruvias,  Tom 
.1  Defurti  <§♦  rapinx  restitutione,  §  3.  4.  p.  473,  and  Gro-  [  54  ] 
tins  de  jure  belli  ac  pads,  Lib.  II.  cap.  2.  §  Q.{d)  tell  us, 
that  in  case  of  extreme  necessity,  either  of  hunger,  or  clothing,  the 
civil  distributions  of  property  cease,  and  by  a  kind  of  tacit  condition 
the  first  community  doth  return,  and  upon  this,  those  common  asser- 
tions are  grounded  ;  "  Quicquid  necessitas  cogit,  defendit.''  "  Ne- 
cessitas  est  lex  temporis  4*  loci.''  "  In  casu  extremse  necessitatis 
omniasunt  communia  :"  and  therefore  in  such  case  theft  is  no  theft, 
or  at  least  not  punishable  as  theft;  and  some  even  of  our  own  law- 

(ff)  Sec  Leg.  Ince,  I.  25. 

(/>)    Viz.  1  Mar.  cap.  12.  for  3  Sfi  Ed.  6.  cap.  5.  was  repealed  by  1  Mar.  cap.  12 

(c)  It  was  at  first  made  to  conlinue  only  till  the  end  of  the  next  session,  but  was 
afterwards  by  several  new  acts  continued  during  the  life  of  queen  Mary;  and  by  1  Eliz, 
cap.  IG.  was  continued  during  her  lite  also,  and  has  never  since  been  revived  ;  but  in 
1  CrfO.  1.  cap.  5.  a  new  act  was  made  to  much  the  same  purpose,  which  is  perpetual. 

{d)  See  Fujf.  dcjure  naturm.  Lib.  11.  cap.  6.  §  6. 


54  HISTORIA  PLACITORUM  CORONyE. 

yers(e)  have  asserted  the  same ;  and  very  bad  use  hath  been  made 
of  this  concession  by  some  of  the  Jesuitical  casuists  in  France^  who 
have  thereupon  advised  apprentices  and  servants  to  rob  their  masters, 
when  they  have  judged  themselves  in  want  of  necessaries,  of  clothes, 
or  victuals;  whereof,  they  tell  them,  they  themselves  are  the  compe- 
tent judges;  and  by  this  means  let  loose,  as  much  as  they  can,  by 
their  doctrine  of  probability,  all  the  ligaments  of  property  and  civil 
society. 

I  do  therefore  take  it,  that,  where  persons  live  under  the  same 
civil  government,  as  here  in  England,  that  rule,  at  least  by  the  laws 
of  England,  is  false  ;  and  therefore,  if  a  person,  being  under  neces- 
sity for  want  of  victuals,  or  clothes,  shall  upon  that  account  clan- 
destinely, and  anirno  furandi  steal  another  man's  goods,  it  is 
felony, (/)  and  a  crime  by  the  laws  of  England  punishable  with 
death;  although  the  judge,  before  whom  the  trial  is,  in  this  case  (as 
in  other  cases  of  extremity)  be  by  the  laws  of  England  intrusted 
•with  a  power  to  reprieve  the  offender  before  or  after  judgment,  in 
order  to  the  obtaining  the  king's  mercy. 

For  1.  Men's  properties  would  be  under  a  strange  insecurity, 
being  laid  open  to  other  men's  necessities,  whereof  no  man  can  pos- 
sibly judge,  but  the  party  himself. 

2.  Because  by  the  laws  of  this  kingdoTn(^^)  sufficient  provision  is 
made  for  the  supply  of  such  necessities  by  collections  for  the  poor, 
and  by  the  power  of  the  civil  magistrate;  and  consonant 
r  55  3  hereunto  seems  to  be  the  law  even  among  the  Jeivs,  if  we 
may  believe  the  wisest  of  kings.  P?-overbs  vi.  30,  31, 
"Men  do  not  despise  a  thief,  if  he  steal  to  satisfy  his  soul,  when  he 
is  hungry  ;  but  if  he  be  found,  he  shall  restore  seven-fold,  and  shall 
give  all  the  substance  of  his  house."  It  is  true,  death  was  not 
among  them  the  penalty  of  theft,  yet  his  necessity  gave  him  no  ex- 
emption from  the  ordinary  punishment  inflicted  by  their  law  upon 
that  offence. (A)  . 

Indeed  this  rule,  "in  casu  extremse  necessitatis  omnia  sunt  com- 
munia,'^  does  hold  in  some  measure  in  some  particular  cases,  where 
by  the  tacit  consent  of  nations,,or  of  some  particular  countries  or 
societies,  it  hath  obtained. 

1.  Among  the  Jeivs  it  was  lawful  in  case  of  hunger  to  pull  ears  of 
standing  corn,  and  eat,  Matth.  xii.  1.  <S'C.(/)  and  for  one,  that  passed 
through  a  vineyard,  or  oliveyard,to  gather,  and  eat  without  carrying 
away.     Dent,  xxiii.,  24,  25. 

2.  By  the  lihodian  law,(/r)  and  the  common  maritime  custom,  if 

(c)  Britlon.  cap.  10.  Crompt.  33.  a.  Plowd.  18.  b.  19.  a.  Dalt.  Just.  cap.  99. 

(/)  Sec  Dallujt  nln  supra.  (g)  43  Eliz.  cap,  2.  Sfc. 

{h)  But  tliuir  oidiiuiry  i)iinisliincrit  Ijcingr  onl}'  jiccnniiiry  could  aftVct  liim  only  when 
he  was  in  a  condition  to  answer  it;  and  tlierel'ore  llie  same  reasons,  which  would  justifj' 
that,  can  by   no  means  be   extended    to  a  corporal,  niucli  less  to  a  capital    punishment. 

(i)  For  the  Pharisees  objected  ajruinst  it  only  on  account  of  its  being  done  on  the 
subhiith  day.    Mark  xi.  23.  «lyc.  huke  vi.  1.  ^c. 

(k)  Vide  Dig.  Lib.  XIV.  tit.  2.  de  lege  Jihudia  de  jaciu,  I.  2.  §  2.  in  fine.  Leg.  Gu- 
lielmi  Conquest,  cap.  38. 


HISTORIA  PLACItORUJVI  CORONA.  55 

the  common  provision  for  the  ship's  company  fail,  the  master  may 
under  certain  temperaments  break  open  (he  private  chests  of  the 
mariners  or  passengers,  and  make  a  distribution  of  that  particular 
and  private  provision  for  the  preservation  of  the  ship's  company. 
Vide  Consolato  del  Mare,  cap.  256. (l)  Les  ciistomes  de  la  Mere, 
;;.  77. 

3.  Nay,  I  find,  among  our  Ens^Ush  voyages  to  the  West-Indies 
described  by  Hackluit,  that  it  was  a  received  custom,  that  if  a  ship 
wanted  Jiecessaries,  and  the  inhabitants  of  tlie  continent  would  not 
furnish  them  for  nioney,  they  might,  by  the  usage  of  the  sea  and 
nations,  take  provision  by  force,  making  the  inhabitants  reasonable 
satisfaction;  ibr  in  these  cases  the  common  consent  of  nations  hath, 
made  it  lawful,  and  therefore  it  is  lawful;  1.  because  ne- 
cessary in  extremity;  2.  because  there  are  no  other  means  [  56  "] 
to  obtain  it  by  an  application  to  superiors;  but  were  this 
done  by  English  mariners  upon  the  English  shore,  where  both  are 
inider  the  same  civil  magistrate  the  case  would  be  otherwise,  because 
capable  of  another  remedy. 

It  is  not  lawful  voluntarily  to  assist  the  king's  enemies  with  money 
or  provision,  for  it  is  an  adhering  to  the  king's  enemies,  and  so  trea- 
son within  the  letter  of  the  statute  of  25  E.  3.  but  yet,  if  the  king's 
enemies  come  into  a  county  with  a  power  too  strong  for  the  county 
to  resist,  and  will  plunder  the  country,  unless  a  composition  be  made 
with  them,  sucli  a  ransoming  of  themselves  is  so  far  from  being  trea- 
son, that  it  hath  been  allowed  as  lawful.  1.  In  respect  of  the  ex- 
treme necessity.  2.  Because  it  is  a  less  detriment  to  the  country, 
and  a  less  supply  to  the  enemy,  than  that  plunder  would  be;  and  for 
that  purpose  I  shall  set  down  the  case  at  large. 

M.  14  E.  2.  B.  R.  Rot.  60.  Diinelm.  "  Placitum  de  transgress, 
coram  Jl.  D.  de  Brome  &  sociis  suis  justiciariis  domini  Regis  in  epis- 
copatu  Dunelm.  sede  vacante  anno  decimo  regni  sni  mittitur  hue 
propter  errores,  &c.  Juratores  dicnnt,  quod  Scoti  inimici  &:  rebelles 
regis  prsedict.  die  JNIartis  in  festo  Sanct*  Catharinse  virginis  anno 
regni  regis  nunc  nono  ingressi  fuerunt  terram  episcopatus  Dunelm. 
ea  de  causEt,  ut  ipsam  destruerent,  &  quod  omnes  de  communitate 
episcopatus  preedicti  tunc  apud  Dunelm.  existentes,  volentes  prasca- 
vere  dictorum  inimicorum  malitiam,  ordinarunt,  quod  unusquisque 
illornm  praestarent  sacramentum  corporate  stare  ordinationi,qua3  pro 
proficuo  communitatis  pra^dictee  contingeret  ordinari,  qui  quideni 
fyHlielmiis  de  Heberne  jurat'  fuit  cum  aliis,  &c.  Item  quod  post 
oonsuhierunt  facere  finem  cum  prsedictis  inimicis,  &cum  eis  fecerunt 
fiuem  de  mille  &  sexcent' marc';  quam  quidem  summam  oporteret 
solvi  incontinent!  per  quod,  quia  non  habuerunt  pecuniam  presto, 
ordinarunt,  quod  quidarn  de  communitate  prasdicta  irent  de  domo  in 
donuim  infra  ball,'  Dunehn.  &.  extra,  &  perscrutarent  ubi  denarii 
ossent  in  deposito,  &  ubicunq;  denarii  hujusmodi  invenirentur,  ca- 
perentur  ad  solutionem  dicti  finis  fesiinand',  quousq;  levari  possit 

{I)  Printed  at  Venice  1584,  in  4to. 
VOL.  I. — S 


67  HISTORIA  PLACITORUM  CORONiE. 

de  coinmiinitat.  prccdict.  &•  satisfieri  illis,  quorum  denarii  sic  ca- 
piendi  fiierunt;  et  quod  prajdictus  JVillielnms  de  Kellaioe  simul 
cum  quodam  Dovid  de  Rofheber  jurat'  ad  perscrutandum  in  forma 
prsedicta  venit  ad  prsedictas  domos,  &  cistam  &  70l.  de  propriis  de- 
nariis  ipsius  WilUelmi  de  Heberne  in  cista  prcedicta  inventas  cepit 
&  asportavit,  &c.  Et  juratores  requisiti,  si  prasdictus  Willielmus 
de  Heberne  consentiebat  captioni  prsedictorum  denariorura,  dicunt, 
quod  non,  &  quia  compertum  est,  &c.  quod  ubi  praedicta  ordinatio 
fuit  facta  de  denariis  in  deposito  perscrutand' &  capiend',  praedict' 
Willielmus  de  Kellawe  simul,  &c,  cepit  denarios  praedict',  qui  fue- 
runt  in  domo  &  propria  custodia  prsedicti  WilUelmi  de  Heberne  & 
contra  voluntatem  suam,  &  etiam  pro  eo,  quod  videtur  curiae,  quod 
prasdict'  Willielmus  de  Heberne  omnino  esset  sine  recuperare,  quoad 
denar'  suos  prasdici',  nisi  esset  versus  praefat'  WitUelmum  de  KeU 
laive,  &c.  qui  praedictos  denarios  in  forma  prasdicta  cepit  &  aspor- 
tavit, consideratum  est,  quod  praedict'  Willielmus  de  Heberne  recu- 
peret versus  praedict'  Willielmum  de  Kellawe  praedictos  denarios  & 
dampna  sua,  quae  taxantur  ad  c.  s.  &  idem  Willielmus  de  Kellawe. 
committatur  gaolas,  &c.  praetextu.cujus  recordi  ad  sectam  praedicti 
WilUelmi  de  Kellatve,  asserentis  errores  &  defectus  in  praedictis  re- 
cordo  and  processu  interesse,mandatum  fuit  episcopo  Dunelm.  quod 
scire  fac'  prsdicto  Willielmo  de  Heberne,  &c,  qui  non  venit. 

"  Ideo  processum  est  ad  examinationem  recordi  per  ejus  defaltum, 
&  assignat  hos  errores;  primum,  quod  nihil  fecit  contra  pacem  regis, 
nee  denarios  illos  cepit  vi  &  armis,  maxime  cum  praedictus  Williel- 
mus de  Heberne  juratas  fuit  stare  ordinationi  praedictae,  &  quod 
ipse  Willielmus  de  Kellaiue  per  sacramentum  pra^hibitum  injunctus 
fuit  scrutari  &  denarios  praedictos  capere;  &  non  est  consonuin,  quod 
dictus  Heberne  recuperaret  praedictos  denarios  &  dampnum  contra 
assensum  &  juramentum  suum  proprium,  nee  quod  ipse  Kellawe 
committeretur  goalae. 

"  Item  in  lioc  quod  justic'  fundaverunt  judicium  suum,  quod  dictus 
Heberne  non  posset  habere  suum  recuperare  de  denariis  praedictis, 
cum  iUud  habere  posset  directe  versus  commun-itatem  vir- 
r  58  ]  tute  ordinationis  &  concessionis  praxlictarum,  &c.  ob  quoe 
errores  hie  in  judicio  recitalos  consideratum  est,  quod  erro- 
nict;  in  primo  judicio  processum  est,  &  quod  idem  Kellaioe  a  gaola 
deliberetur,  &  totus  processus  evacuetur,  &c." 

Ill  Pasch.  15  Rot.  17.  "  Patet,  quod  Scoti  cum  hominibus  de 
Rippon  similiter  concordarunt  pro  mille  marc',  ne  villa  comburetur." 

Nota,  this  was  an  act  done  for  the  security  of  the  country  in  a 
time  of  actual  war  and  invasion  by  enemies,  and  tlierefore  rendered 
that  by-law  and  the  execution  thereof  justifiable  by  reason  of  that 
necessity,  which  would  hardly  have  done  it  in  time  of  peace.  2.  But 
that,  wliich  this  record  princijially  evidenceth,  is,  that  such  a  supply 
of  the  king's  enemies  upon  such  a  necessity  in  a  time  of  war,  and 
to  prevent  the  devastation  of  the  country,  was  not  taken  at  all  to  be 
an  adhering  to,  or  treasonable  aiding  of  tlie  king's  enemies." 


HISTORIA  PLACITORUM  CORONiE.  58 


CHAPTER  X. 

CONCERNIXG  THE  OFFENCE  OF  HIGH  TREASON,  THE  PERSON  AGAINST 
WHOM  C03IMITTED,  AND  THE  REASON  OP  THE  GREATNESS  OP 
THE    OFFENCE  ;    AND    TOUCHING    ALLIGEANCE. 

Having  premised  these  general  observations  relating  to  all  crimes, 
that  are  capital,  and  their  punishments,  I  shall  now  descend  to  con- 
sider of  capital  crimes  particularly,  and  therein  first  of  high  treason. 

And  yet,  before  I  descend  to  the  particulars  thereof,  I  shall  premise 
also  some  things  in  general  touching  alligeance,  since  the  specifica- 
tion of  this  otlence  consists  principally  in  this  aggravation,  thai  it  is 
contra  li^eantise  sux  debitum. 

The  offence  of  high  treason  is  an  offence,  that  more  im- 
mediately is  against  the  person  or  government  of  the  king  ;   [  59  ] 
and  the  greatness  of  the  offence,  and  the  severity  of  the 
punishment  is  upon  these  two  reasons. 

1.  Because  the  safety,  peace,  and  tranquillity  of  the  kingdom  is 
highly  concerned  in  the  safety  and  preservation  of  the  person,  dignity, 
and  government  of  the  king;  and  therefore  the  laws  of  the  kingdom 
have  given  all  possible  security  to  the  king's  person  and  government 
under  the  severest  penalties. 

2.  Because  as  the  subject  hath  his  protection  from  the  king  and  his 
laws,  so  on  the  other  side  the  subject  is  bound  by  his  alligeance  to  be 
true  and  faithful  to  the  king  ;  and  hence  all  indictments  of  high  trea- 
son run  prodilorie,  as  a  breach  of  the  trust,  that  is  owing  to  the  king; 
contra  ligeantias  sux  debitum,  agamst  that  faith  and  alligeance  he 
owes  to  the  king,  and  contra paceni  domini  regis,  coronam,  4*  digni- 
tatem ejus. 

And  hence  it  is,  that  if  an  alien  enemy  come  into  this  kingdom 
hostilely  to  invade  it,  if  he  be  taken,  he  shall  be  dealt  with  as  an 
enemy,  but  not  as  a  traitor,  because  he  violates  no  trust  nor  allige- 
ance: resolved  in  the  lord  flerise'scgise.  Co.  P.  C.  cap.  Ip.  ll.l  Co. 
Hep.  6.  a.  Perkin  fFarbeetc's  case. 

But  if  an  alien,  the  subject  of  a  foreign  prince  in  aniity  with  the 
king,  live  liere,  and  enjoy  the  benefit  of  the  king's  protection,  and 
commit  a  treason,  he  shall  be  judged  and  executed,  as  a  traitor ;  for 
he  owes  a  local  allegiance.  7  Co.  Rep.  6.  the  case  o/Stephano  Fer- 
rara(a)  a  Portuguese  ;  and  the  indictment  shall  not  run  contra  natu- 
raltm  dominum,  but  contra  dominum  snum,  and  conclude  contra 
ligeantix  sux  debitum;  and  such  an  alien  was  compellable  to  take 
the  oath  of  alligeance  m.the  leet.     2  Co.  Instit.p.  121. (A) 

If  a  merchant,  subject  of  a  foreign  prince  in  hostility  with  our 
king,  come  hither,  after  the  war  begun,  without  the  king's  license,  or 
safe-conduct,  such  a  person  may  be  dealt  with  as  an  enemy,  viz. 
taken,  and  ransomed.     Mag.  Chart,  cap.  30. (c) 

(a)  And  Emanuel  Lewis  Tinoco.  Hill.  36  Elix.  Dyer.  145. 

(6)  Mirroir  de justice,  cup.  5.  §  1.  ?j.  6.  (f)  Co.  Instit.  58. 


60  HISTORIA  PLACITORUM  CORONA. 

By  that  statute  merchants  of  a  hostile  country  found  hi 
[  60  ]  this  realm  at  the  heginniug  of  the  war  shall  be  attached 
without  harm  to  their  body  or  goods,  till  it  be  known,  how 
the  English  merchants  are  used  in  the  hostile  country;  and  if  the 
English  merchants  be  well  used  there,  theirs  shall  be  likewise  used 
here  ;  so  that  in  this  case  such  merchants,  though  alien  enemies, 
have  the  benefit  of  the  king's  protection,  and  so  owe  a  local  alli- 
geance,  which,  if  they  violate,  they  may  be  dealt  with  as  traitors, 
not  as  enemies,  for  they  have  the  advantage  of  the  king's  protec- 
tion, as  well  as  his  other  subjects ;  yea,  it  seems  also,  that  if  the  sub- 
ject of  a  foreign  prince  lives  here  as  a  private  man,  and  then  war  is 
proclaimed  betwixt  our  king  and  that  foreign  prince,  and  yet  that 
alien  continues  here  in  England  without  returning  to  his  natural 
sovereign,  but  under  the  cover  and  protection  of  the  king  of  England 
commits  a  treason,  he  shall  be  judged  and  executed  as  a  traitor;  for 
by  continuing  here  he  continues  the  owning  of  his  former  local 
alligeance.[l] 

Yet  for  greater  security  in  the  times  of  hostility  between  this  and 
foreign  kingdoms,  especially  that  of  France,  there  went  out  precepts 
under  the  great  seal  to  arrest  all  those  of  that  hostile  kingdom,  until 
they  gave  security,  quodse  bene  gereni  erga  regeni,  Sf  quod  sua  bona 
non  transferent  sine  Ucentid  regis,  Sf  quod  literas  ant  nuncios  non 
miltent  ad  partes  externas,  nee  aliquid  contra  pnceni  atlemptubunf. 
Rot.  Vascon.  18  E.  II.  M.  24,  23  <5'21.  Borso.  And  sometimes  those 
aliens  were  constrained  actually  to  swear  fealty  to  the  crown  of 
England  in  the  times  of  hostility,  and  thereby  to  superadd  an  actual 
alligeance  to  that  local  alligeance,  which  they  had  being  under  the 
king's  protection  as  subjects,  though  in  truth  they  were  the  natural 
subjects  of  the  hostile  prince.  Pat.  14.  H.  Q.  part.  2.  m.  34  4'  35.  and 

[I]  If  an  alien  residing  and  receiving-  protection  in  England  should,  after  the  com- 
mencement of  a  war  between  the  English  king  and  the  alien's  sovereign,  go  over  to  his 
native  country,  but  leave  his  family  and  effects  in  England,  and  adhere  to  her  enemies 
(the  alien's  countrymen)  in  acts  or  purposes  of  hostility,  he  may  be  dealt  with  as  a  trai- 
tor. Tills  rule  was  laid  down  by  all  the  judges  assembled  at  queen  vlnwe's  command, 
January  12th,  1707.  And  they  laid  in  that  resolution  a  considerable  stress  on  the 
queen's  declaration  of  war,  in  which  she  expressly  took  under  her  protection  the  persons 
and  estates  of  the  subjects  of  France  and  Spain  (with  whom  she  was  at  war)  residing  ia 
England,  and  demeaning  themselves  dutil'ully,  and  not  corresponding  with  the  enemy ; 
for  by  that  declaration  these  aliens  were  put  under  a  kind  of  safe-conduct,  and  enabled 
to  acquire  chattels  and  to  maintain  actions  for  the  recovery  of  their  personal  rights  in  as 
full  a  manner  as  alien  friends  may.  Font.  Disc.  1,  sect.  4,  Sec  also  Rix  v.  De  la  Muttc, 
21  Howell's  St.  Tr.  G87;  1  East.  F.  C.  53  ;  Salk.  46  ;  Latw.  34  ;  Lord  Raym.  282. 

Aiicfi  enemies,  resident  in  the  country,  may  sue  and  be  sued  as  in  time  of  peace  ;  for 
protection  to  their  jjcrsons  and  property  is  due,  and  implied  from  the  |)crmission  to  them 
to  remain,  witiiout  being  ordeicd  out  of  the  country  by  the  l*resident  of  the  United  States. 
The  lawful  residence  does,  pro  hac  vice,  relieve  the  alien  from  the  character  of  an  enemy, 
and  entitles  his  person  and  property  to  protection.  2  Kent's  Com.  63  ;  Dauhigny  v. 
Darellon,  2  Anst.  462  ;  Clark  v.  Marcy,  lU  Johns.  Rep.  69  ;  llussel  v.Skipwith,  6  Jiinn. 
Rep.  241.  But  it  is  a|)preliende(l  that  such  a  person,  tiie  moment  he  quits  the  country, 
even  though  he  leaves  liis  family  and  etl'eets  bchitid,  becomes  an  enemy,  and  conscquetitly 
incapable  of  committing  treasr)n  against  the  United  Slates,  unless  |)erhaps  himself,  his 
family,  and  his  efl'oets,  were  taken  expressly  under  the  protection  of  the  United  Slates, 
as  in  the  case  above  stated  from  Foster. 


HISTORIA  PLACITORUM  CORONJ^.  60 

if  they  refused,  were  either  imprisoned,  or  expelled  the  kingdom. [2] 
Vide  infra  cap.  15, 

And  upon  the  same  account  it  is,  that  though  there  be  an  usurper 
of  the  crown,  yet  it  is  treason  for  any  subject,  while  the  usurper  is  ia 
full  possession  of  the  sovereignty,  to  practise  treason  against  his  per- 
son ;  and  therefore,  although  the  true  prince  regain  the  sovereignty, 
yet  such  attempts  against  the  usurper  in  compassing  his  death  have 
been  punished  as  treason,  unless  they  were  attempts  made  in 
the  right  of  the  rightful  prince,  or  in  aid  or  assistance  of  him,  [  61  ] 
because  of  the  breach  of  ligeance,  that  was  temporarily  due 
to  him,  that  was  king  de  facto;  and  thus  it  was  done  A  E.  A.  9  E.  4. 
\,{d)  though  H.  6.  wasdeclared  an  usurper  by  act  of  parliament  1  E. 
4.  and  therefore  king  Edivard  IV.  punished  Ralph  Grey  with  de- 
gradation, as  well  as  death,  not  only  for^lis  rebellion  against  himself, 
but  also  pur  cause  de  son  jjerjury  4*  doubleness,  qii'il  avoil  fait  al 
roy  H.  6.  4  E.  4.  20. 

And  because  high  treason  is  said  to  be  contra  ligeantise  debitiim, 
it  will  not  be  amiss  to  premise  something  touching  alligeance  and  its 
kinds,  referring  myself  to  7  Co.  Rep.  Calvin's  case,  in  relation  to 
what  is  here  omitted  touching  it. 

Alligeance  therefore  due  to  the  king  is  of  two  kinds:  1.  Original, 
virtual,  and  implied.  2.  Exprest,  and  declared  by  oaths  or  pro- 
mises.[3] 

The  virtual  or  implied  alligeance  is  that,  which  the  subject  owes 
to  his  sovereign  antecedently  to  any  express  promise,  oath,  or  engage- 
ment; this  is  that,  which  the  Custumer  de  Normandie  mentions  cap. 
13.  Aliance  &  la  loyaulte  de  tons  ses  homes  de  toute  la  contree,  par 
quoy  ils  sont  tenus  a  lui  donner  conseil  &ayde  de  leurs  propres  corps 
contre  toutespersonnes  qui  peuvent  viver  &  mouryr&soy  garderde  lui 
nuyre  en  toutes  choses  ne  de  soustenir  in  aulcune  chose  la  partie  de 
ceulx  qui  parlent  contre  luy. 

And  from  the  breach  of  this  original  ligeance  ariseth,  the  crime  of 
treason,  though  the  person  committing  it  never  promised  or  swore 
faith  or  alligeance  to  his  prince  :  for  as  the  king  by  the  very  descent  of 
the  crown  is  fully  invested  with  the  right  of  sovereignty  before  his 
coronation,  (which  is  only  a  magnificent  solemnity[4]  attending  that, 
which  is  before  settled  in  the  prince  by  the  descent  of  the  crown,)  so 
the  subject  is  bound  to  his  king  by  an  intrinsic  alligeance  before  the 
superinduction  of  those  express  bonds  of  oath,  homage,  and  fealty, 
which  were  instituted  for  the  belter  securing  thereof. 

And  this  alligeance  is  either  natural  from  all  that  are  sub- 
jects born   within  the  king's  alligeance;   or  local,  which   [  62  ] 

('/)  It  was  not  done  in  this  case,  but  only  it  is  said  by  the  counsel,  that  it  may  bo 
done. 

[~]  In  the  United  States,  an  alien  enemy  is  not  permitted  to  make  the  declaration 
required  by  law,  preparatory  to  the  naturalization  of  aliens.  Ex  parte  Newman,  3 
Oallis.  C.  C.  R.l]. 

[3]  1  m.  Com.  3G6.  1  East,  P.  C.  49.  2  Kent's  com.  39. 

[4]  .See  Fust.  ia9. 


62  HISTORIA  PLACITORUM  CORONA. 

obligeth  all  that  are  resident  within  the  king's  dominions,  and  partake 
of  the  benefit  of  the  king's  protection,  althongh  strangers  born. 

The  breach  of  this  primitive  or  virtual  ahigeance  is  that,  which  is 
Called  high  treason  ;  what  shall  be  said  of  breach  of  this  alligeance, 
so  as  to  make  a  person  guilty  of  treason,  shall  be  shown  hereafter. 

The  express  or  explicit  alligeance  consists  in  certain  promises, 
oaths,  or  professions  attesting  and  witnessing  that  alligeance,  and 
instituted  for  the  farther  security  thereof:  and  they  are  of  two  kinds; 
first,  those,  which  were  anciently  instituted  by  the  Common  law, 
namely  the  oath  of  fidelity  and  alligeance,  and  the  profession  of  lige 
homage  :  and  such,  as  are  instituted  by  act  of  parliament,  namely  the 
oath  of  supremacy  instituted  by  the  statute  of  1  Eliz.,{e)  and  the 
oath  of  obedience  instituted  by  the  statutes  of  3  J(icobi.{f)  Some- 
thing I  shall  say  of  all  these. 

The  oath  of  fidelity  or  fealty  is  of  two  kinds:  1  That  which  is  due 
by  tenure,  whether  of  the  king,  or  of  mesne  lords,  which  is  ratione 
feodi  vel  vassalagii,  and  hath  a  special  relation  to  the  lands  so  held, 
and  is  set  down  by  Littleton,  §  19.  "  Hear  ye,  my  lord,  I  shall  be 
faithful  and  loyal,  and  faith  to  you  shall  bear  for  the  tenements, 
which  I  claim  to  hold  of  you,  and  I  shall  lawfully  do  to  you  the  cus- 
toms and  services,  which  I  ought  to  do  at  the  terms  assigned.  So 
help  nie  God»^ 

Touching  this  feudal  fealty,  or  fealty  by  reason  of  tenure,  I  have 

not  much  to  do  in  this  place.     The  other  kind  of  fealty  is  that  oath, 

which  is  called  Jidelitns  lii2;ea,  or  alligeance,  and  performed  only  to 

a  sovereign  prince,  and  therefore  regularly  ought  to  be  performed  by 

fall  men  above  the  age  of  twelve  years,  whether  they  hold  any  lands 

or  not.  The  tenor  of  this  oath  according  to  Fleta,  Lib.  III. 

[  63  "l   cap.  16,(g-)  runs  thus:  "Hoc  auditis,  circumstantes,  quod 

fidem  regi  portabo  de  vita,  &  membris,  &  terreno  honore,  & 

arma  contra  ipsum  non  portabo:  sic  me  Deus,  &c." 

According  to  Briton,  v^ho  wrote  about  5  E.  1  cap.  29.  (which  is 
also  mentioned  in  Cali'in''s  case,  7  Co.  Rep.  6.)  the  common  form  of 
the  oath  of  alligeance  taken  in  leets  runs  thus:  "Ceo  oyes  vous  A1 
bailife,  que  jeo  Jl.  de  ceo  jour  en  avaunt  serray  feal,  &  leal  a  nostre 
seigniour  E.  roy  d'Angleterre,  &  a  ses  heires,  &  foy  &  lealte  lui  por- 
teray  de  vie,  &  de  membre,  &  de  terrien  honour,  &  que  jeo  lour  mal, 
lie  lour  damage,  ne  saveray,  ne  orray,  que  jeo  ne  le  defeiidray  a  moii 

(e)  Cap.  1. 

(/)  Cup.  4.  [  Vide  7  Jac.  I.  cap.  2.  Sf.  G.  13  Car.  II.  St.  2.  cap.  I.  13.  ^-  14  Car.  II.  cap. 
3  ^-  4.  25  Car.  II.  cap.  2.  '60.  Cur.  li.  »S7.  2.  cap.  1.]  But  these  oaths  are  abrop;ite(l  by  1 
W.  Sf  M.  Scss.  1.  cap.  1  «V  8.  and  new  ones  appointed  in  thcir_,|ooai ;  sec  1   W.  6f  M.  Sess. 

2.  cap.  2.  §  3.  and  3  W.  S(  M.  cup.  2.  13  W.  3.  cap.  6.  1  AnncB,  cap.  22.  4.  AnucCy  cap. 
8.  6  Annas,  cap.  7.  14.  23.     1  Gto.  1.  cap.  13,  i^-c.[3] 

(g)  Sect.  22. 

[5]  See  also  the  oath  of  abjuration,  6  Geo.  3.  c.  53.  Tlie  Declaration  ag^ainst  Tran, 
eui).slaniiation,  10  Geo.  4.  c.  7.     Aflimiations  of  Quakers  and  Moravians,  9  Geo.  4.  c.  32. 

3.  &  4  IV.  4.  c.  4y.  1  &  2  Vict.  cc.  5.  15.  77.     AHirinatious  of  Separatists,  3  &.  4.  W. 

4.  c.  82, 


HISTORIA  PLACITORUM  CORONA.  63 

poyer:  si  moy  eyde  Dieu  &  les  Seyntz."  This  is  the  form  of  tlie 
ancient  oath  of  alhgeance,  or  fidehty  to  the  king,  and  as  it  is  used  at 
this  day;  and  he  that  is  minded  to  see  the  antiquity  of  it,  may  read 
thereof  7  Co.  Rep.  7.  Calvin's  case,  Spe/man^s  Gloss.  Titiilo  Fide- 
litas,  which  carry  it  up  as  high  as  king  Jirlhnr ;  more  particularly  it 
was  established  by  the  laws  of  the  Confessor, {/^)  and  by  the  laws  of 
king  William  I.  quod  vide  in  Spicilegiis  Seldeni  ad  Edmerum  le^e 
52,{i)  "Statuimus,  ut  omnes  Uberi  homines  foedere  &  sacramento 
affirment,  quod  intra  &  extra  universum  regnum  Anglia3  JVilUelmo 
regi  domino  suo  fideles  esse  volunt,  terras  &  honores  illius  omiii 
fidelitate  ubique  servare  cum  co  &  contra  inimicos  &  alienigeiias 
defendere."(A^) 

And  herein  the  prudence  of  the  Common  law  is  observable ;  the 
ancient  oath  of  alligeance,  1,  was  short,  and  plain,  not  entangled  with 
long  and  intricate  clauses  or  declarations,  but  the  sense  of  it  is  obvi- 
ous to  the  most  common  understanding;  and  yet,  2,  it  is  comprehen- 
sive of  the  whole  duty  of  the  subject  to  his  prince,  and  therefore 
hath  obtained  for  above  six  hundred  years  in  this  kingdom  ;  and  if 
any  difficulties  should  occur  in  the  sense  or  extent  thereof, 
length  of  time  and  long  experience  and  practice  hath  suf-  [  64  ]] 
ficiently  expounded  it. 

I  shall  subjoin  some  observables  concerning  this  oath,  which  indeed 
explain  that  implied  and  virtual  alligeance,  whereof  before. 

1.  By  whom  this  oath  is  to  be  taken :  It  is  to  be  taken  by  all  per- 
sons above  the  age  of  twelve  years,  whether  denizens  or  aliens,  2  Co. 
Instil.])'  121,  except  women,  earls,  prelates,  barons,  and  men  of 
religion,  according  to  Brillon.,  cap.  12.  which  exception  is  not  to  be 
absolutely  and  universally  understood  ;  for  all  persons  above  the  age 
of  twelve  years  are  bound  to  take  this  oath  of  alligeance,  except 
women,  as  shall  be  shown,  but  not  in  the  same  manner  or  place,  as 
others;  but  because  regularly  this  oath  was  to  be  taken  in  the  leet, 
or  at  least  in  the  sheriff's  turn,  which  is  in  nature  of  a  leet,  where 
earls,  barons,  prelates,  and  men  of  religion  were  not  bound  to  do 
their  suit,  therefore  by  the  statute  of  Marlbr.  cap.  10,  is  this  excep- 
tion added  :  but  yet  at  other  times  and  in  other  places  men  of  reli- 
gion and  noblemen  were  to  take  it:  as  shall  be  shown. 

It  differs  from  the  oath  of  fealty  performed  to  the  king  by  tenure, 
for  that  includes  somewhat  more,  and  somewhat  less  ;  and  according  to 
Britton  cap.  68.(/)  runs  thus  when  performed  to  the  king :  "  Ceo  oyes 
vous  bone  gents  qe  jeo  J.  S.  foy  a  nostre  seignior  le  roy  Edward 
porterai  de  ceo  jour  en  auaunt  de  vie  &  de  membre,  de  cors  &  de 
chateux,  &  de  terrene  honor,  &  les  services  qe  a  lui  appendent  de 

(/()  i.  35.  but  these  laws  are  evidently  spurious,  and  seem  to  be  tlie  composition  of  some 
lawyer  alter  the  reign  of  William  II.  Vide  Hiclusii  Dissert.  Epist.  p.  [)5.  and  even  in  tiie 
best  MS.  copies  of  these  laws  the  legendary  account  of  king  Arthur  is  omitted. 

(i)  Vide  Leg.  Angln-Six.  Edit.  Wilkins.  p.  228.  Edit.  Lambard,  p.  170. 

(A)  1  ide  axsisas  Henrici  regis  facias  apud  Clarendon  dc  renovutus  apud  Northampton. 
Hoveden,  p.  314.  Edit.  Savil. 

(/)  §  47^. 


64  HISTORIA  PLACITORUM  CORONA. 

fees  &  de  tenements,  qne  jeo  teigne  de  lui,  leanment  les  ferray  as 
termes  dues  a  mon  poer :  si  moy  ayde  Dieu  &  les  Seyniz,  &c." 

Now,  besides  this  oath  of  fealty  or  ailigeance  to  the  king,  there 
were  anciently  certain  oaths  administered  to  persons  of  a  different 
age;  but  these  have  been  long  disused,  as  namely,  that,  which  Brit- 
ton  mentions  ca/?.  12.  viz.  that  all  above  the  age  of  fourteen  years,(7??.) 
should  swear  to  be  true  and  foithful  to  the  king,  and  that  they  should 
not  be  felons  nor  assenters  to  felons,  excepting  men  of  religion,  wo- 
men, clerks,  knights,  and  their  eldest  sons;(?i)  and  of  the  like 
[  65  ]  nature  was  that  oath  appointed  by  king  Henry  III.  to  be 
taken  by  all  men  above  fifteen  years,  consisting  of  divers 
particulars  in  order  to  the  preservation  of  the  peace,  and  mentioned 
at  large  by  Bracton,  Lib.  III.  Tract.  2.  cap.  1.  f/e  Corona;  both 
which  it  seems  were  temporary  provisions  for  preservation  of  the 
peace,  and  therefore  administered  to  persons  above  fourteen  and 
fifteen  years,  and  diifered  from  this  settled  oath  of  ailigeance  above 
mentioned. 

2.  What  kind  of  oath  of  fidelity  this  is:  As  there  is  homagium 
ligeum,  and  homagium  simplex,  so  there  \s  fidelilas  ligea  and  Jide- 
litas  simplex;  this,  that  is  performed  to  the  king,  is  jidelitas  ligea, 
and  differs  from  the  later,  1.  In  that  this  is  performed  to  a  king,  the 
other  to  a  mesne  lord.  2.  This  is  performed  without  relation  to  any 
tenure  of  lands.  3.  This  is  without  exception  of  the  fidelity  to  any 
person,  that  is  always  salvd  fide  S^-  ligeantid  domini  regis. 

Yet  there  seems  to  be  a  double  kind  of  lige  fealty, [6]  as  where 
there  is  a  prince,  that  is  subordinate  to  another,  and  yet  hath  jura 
summi  imperii  over  his  subjects  :  such  was  the  king  of  Scots,  whilst 
in  some  times  of  Edward  I.  and  Edivard  III.  he  was  in  subjection  to 
the  crown  of  England ;  such  was  the  prince  of  Wales  before  the 
conquest  thereof  by  Edward  I.  and  the  full  union  of  it  to  the  crown 
o(  England ;  and  thus  it  was  in  many  investitutes  made  formerly 
by  the  kings  of  England:  for  instance  anno  35  H.  3.  when  that 
king  gave  to  his  son  Edward  the  principality  of  Gascoigne  in 
France,  so  that  the  great  men  of  that  coxxnlXY  fecerunt  ei  homa- 
gium Si'  fidelitatis  jar  amentum ;  yet  Matthew  Paris(o)  tells  us, 
that  dominus  rex  tamen  sibi  retinuit  principale  dominium,  scili- 
cet ligeantiam. 

The  like  was  done  by  E.  3.  when  Rot.  Vascon.  36  E.  3.  m.  IS. 
the  king  had  given  to  the  Black  Prince  the  principality  oi  t^quitain 

(to)  This  probably  should  be  twelve  years.  Sec  2  Co.  Instil.  147.  Vide  supra  in 
notis,  p.  24. 

{n)  Tliis  exception  seems  not  to  relate  to  the  oath,  but  to  the  being  in  a  decenna  or 
titliin^.  The  whole  piissa^ro  runs  thus  :  "  Volons  nous,  que  trcs  tous  eeux  de  xiiii  ans  de 
southe  nous  facent  le  sereuicnt,  que  ils  nous  firrount  f'ealx  &  leaux,  &  que  lis  ne  ser- 
rount  fuions,  ne  a  (lions  asscntauiits,  &  volons,  (pie  tout/,  soierit  cndizcyne,  &  plevys  par 
dcseyners,  sauvc  gentz  de  religion,  clers  &  chivalers  &  lours  litz  cynes,  &  femes." 

(0)  p.  845. 

[C]  Sec  Anstei/s  Cons,  of  Engl.  92. 


HISTORIA  PLACITORUM  CORON.^.  65 

with  a  regal  jurisdiction,  viz.  merum  4*  mixtum  imperium, 
so  that  ill  relation  to  the  subjects  of  Jlquitaia  he  was  in  [  66  1 
nature  of  a  sovereign;  yet  the  iiing  not  only  reserv^ed  hortia- 
gium  ligeiim  to  be  performed  to  him  by  the  prince,  but  also  reserved 
his  own  sovereignty,  viz.  Dominio  directo  c^*  superioritate  7iobis 
semper  specialiler  reservatis:  by  reason  whereof  tlie  king  did  not 
only  substitute  his  delegates  or  judges  de  la  sovereignty  et  de  resort 
to  receive  appeals  from  the  prince,  as  appears  by  INIr.  Seidell's  Tit. 
Honoris, part  2.  cap.  3.  §  4.  but  was  intitled  to  a.superior  alligeance 
of  all  the  subjects  of  Jlquitain:  so  that  here  were  two  alligeances; 
one  due  to  the  prince,  which  was  qualified  and  restrained,  salva  fide 
regis;  and  the  other  absolute,  which  was  due  to  the  king  as 
supreme. [7] 

Again,  when  in  the  year  1170,  Hen.  2.  by  consent  of  parlia- 
ment,{p)  as  it  seems,  (for  otherwise  it  could  not  be  done,)  made  his 
eldest  son  king  of  England;  so  that  there  was  rex  pater,  and  rex 
filius,  yet  he  reserved  to  himself  the  supreme  alligeance  of  all  his 
subjects:  "  Et  in  crastino  coronationis  illius  rex  pater  fecit  Williel- 
miirn  regem  Scotorum,  &  Davideni  fratrem  suum,  &  comites,  & 
barones  regni  devenire  homines  novi  regis,  &  jurare  ei  fidelitateni 
contra  omnes  homines,  salva  fidelitate  sua;"  Quod  vide  apud  Hove- 
den  sub  eodem  anno,(y)  and  the  instrument  itself  at  large  apud 
Brampton,  p.  1104:(r)  "  Hasc  est  conventio  &  finis,  quae  Williel- 
mus  rex  Scotias  fecit  cum  domino  suo  Henrico  rege  Anglias  filio 
Matildis  imperatricis,  viz.  quoddictus  IVilliehnus  xqx  Scotiae  devenit 
homo  ligeiis  domini  regis  x'Vngliae  contra  omnem  hominem  de  Scotia, 
&  de  omnibus  terris  suis  aliis,  &  fidelitatem  ei  fecit,  ut  ligeo  domino 
suo,  sicut  alii  homines  suo  principi  facere  solent ;  similiter  fecit; 
homagium  Henrico  filio  suo,  &.  fidelitatem,  salva  fidelitate  domini 
regis  patris  sui,  &c.  Comites  &  barones  de  terra  regis  Scotiae,  de  qui- 
bus  dominus  rex  Angliae  homagium  habere  voluerit,  facient  ei  homa- 
gium contra  omnem  hominem,  &  fidelitatem,  ut  ligeo 
domino  suo,  sicut  alii  homines  sui  ei  facere  solent,  &  Hen-  [  67  1 
rico  regi  filio  suo  &.  haeredibus  suis,  salva  fidelitate  domini 
regis  patris  sui." 

Here  was  first  the  supreme  king,  namely  rex  pater,  who  did  not 
oust  himself  of  his  regality,  as  some  have  mistaken,  but  had  the  sove- 
reignty still,  for  he  reserved  his  ligeance  tVom  the  new  king,  and  from 
all  his  subjects;  yea,  and  in  farther  testimony  thereof,  the  rex  filius 
in  the  year  1175,  did  his  father  lige  homage,  and  swore  alligeance 
contra  omnes  homines,  as  appears  by  Hoveden.  Secondly,  Here  is 
a  subordinate  king,  rex  filius,  who,  though  in  relation  to  his  father 

(p)  Hoveden  sub  anno  1170,  Brompton,p.  1061. 
(7)  Et  sub  anno  1175. 

(r)  Et  in  libra  rubra  scaccariijol.  CLXVI.  Sf  Rymer's  Faedera,  vol.  I.  p.  39,  ex  magna 
rotulo  penes  Camerar\ 

[7]  The  citizens  of  the   United  States  owe  a  double  allegiance;  first,  to  the  United 
Stales,  and  then  to  the  State  of  whicli  they  are  citizens.    2  Kent's  Cum.  43. 
VOL.    I. — 9 


67  HISTORIA  PLACITORUM  CORONA. 

he  was  a  subject,  yet  in  relation  to  his  subjects,  and  particularly  to 
the  king  of  Scots,  was  a  sovereign.  ThircUij,  Here  is  yet  another 
subordinate  king,  IVilUam,  the  king  of  Scots,  who  was  a  sovereign 
in  relation  to  his  subjects ;  and  altho  there  was  an  alligeance  or 
Jideliius  ligea  due  by  the  subjects  of  Scotland  to  their  king  William, 
yet  it  was  salvd  fidelitate  to  the  kings  of  England,  father  and  son  ; 
and  tho  there  was  a  lige  fealty  due  to  rex  Jilius,  yet  it  was  salvd 
fide  regis  patris;  but  the  fidelity  or  alligeance  to  the  rex  pater  was 
ipmely  fidelitas  ligea,  for  it  had  no  exception. 

3.  The  third  observable  upon  this  oath  of  alligeance  is,  that  it  is 
not  only  applicable  to  the  politic  capacity  of  the  king,  but  to  thq 
person  of  the  king,  as  well  as  to  his  office,  or  capacity;  and  for  the 
misapplication  of  the  alligeance  to  the  jegal  capacity  or  crown,  ex- 
clusive of  the  person  of  the  king,  among  other  things  the  Spencers 
were  banished.  T^^ide  Judicium  inde  in  Veteri  Magna  Chartd,  ^- 
7  Rep.  11.  Calvin's  case,  for  the  oath  is  to  be  applied  to  the  person 
of  the  king,  as  well  as  his  crown. 

4.  That  in  all  oaths  of  fealty,  as  likewise  in  the  profession  of  ho- 
mage to  any  inferior  or  subordinate  lord  or  prince,  it  must  be  salvd 
fide  4'  ligeantid  domini  regis;  and  to  omit  this  saving,  is  punisha- 
ble in  such  lord:  see  for  this,  the  notable  Record  of  6  E.  1.  against 
the  bishop  of  Exeter,  Co.  Lilt.  §  S5,{s)  and  it  is  no  more  than  is  used 
in  other  kingdoms.  Vide  Spelm.  in  titulo  Fidelitas.  The  emperor 
Frederic  Barbarossa  in  the  year  1152,  made  a  law  that  within  his 

empire  in  omni  sacramento  fidelitatis  imperator  nomina- 
[  68  3   ^^^^  excipiatur,  which  obtained  presently  the  like  observa- 
tion in  all  other  countries,  and  accordingly  is  the  Ciistumer 
de  Normandy ,  cap.  29  t^^  Glossa,  2  da.  Ibidem. 

5.  That  tho  there  may  be  due  from  the  same  person  subordi- 
nate alligeances,  which  tho  they  are  not  without  an  exception  of 
the  fidelity  due  to  the  superior  prince,  yet  are  in  their  kind  sacramento, 
ligea  fidelitatis,  or  subordinate  alligeances,  yet  there  cannot,  or  at 
least  should  not  be  two  or  more  co-ordinate  absolute  ligeances  by 
one  person  to  several  independent  or  absolute  princes;  for  that  law- 
ful prince,  tiiat  hath  the  prior  obligation  of  alligeance  from  his  sub- 
ject, caiuiot  lose  that  interest  without  his  own  consent  by  his  subject's 
resigning  himself  to  the  subjection  of  another;  and  hence  it  is,  that 
the  natural-born  subject  of  one  prince  cannot  by  swearing  alligeance 
10  another  prince  put  off  or  discharge  him  from  that  natural  allige- 
ance;  for  this  natural  alligeance  was  intrinsic  and  primitive,  and  an- 
tecedent to  the  other,  and  cannot  be  devested  williout  the  concurrent 
act  of  that  prince  to  whom  it  was  first  due  :[S]  indeed,  the  subject  of 

(s)  p.  65,  a.  b. 

[8]  In  liis  lectures  on  the  Laws  and  Constilntion  of  Englarid,  p.  94,  Mr.  Anstey  thus 
speaks  :  "Upon  no  better  foundation  than  the  speculation  of  a  Publicist,  it  has  been  as- 
sumed, that  the  rights  of  the  subject  arc  so  thoroug'hly  reciprocal,  Ihat,  where  the  one 
ceases  or  is  suspended,  the  other  ceases  and  is  suspended  too:  and  that  the  one  cannot  be 
lessened  and  impaired,  witiiout  the  other  bcin;yr  weakened  in  proportion.  Such  positions 
arc  unknown  to  the  kws  of  England.    It  is  not  from  compact  or  reciprocity  but  fiora 


HISTORIA  PLACITORUM  CORONA.  68 

a  prince,  to  whom  he  owes  alHgeance,  may  entangle  himself  by  his 
iibsolute  subjecting  himself  to  another  prince,  which  may  bring 
him  into  great  straits;  but  he  cannot  by  such  a  subjection  devest  the 
right  of  subjection  and  aUfgeance,  that  he  first  owed  to  his  lawful 
prince. (^)  [9] 

It  appears  by  Bradon,  Lib.  V.  cap.  2A,{u)  that  there  were  very 
many,  that  had  been  anciently  ad  Fideni  regis  Jlnglx  <5'  Fraiicise, 
especially  before  (he  loss  of  Normandy;  such  were  the  comes  mares- 
callus  that  usually  lived  in  England,  and  M.  de  Feynes  manens  in 
Francid,  who  were  ad  Jidem  tilriiisgue  regis,  but  they  ever  ordered 
their  homages  and  fealties  so,  that  they  swore  or  professed  ligeance  or 
lige  homage  only  to  one ;  and  the  homage  they  performed  to  the 
other,  was  not  purely  lige  homage,  hut  vather  feudal,  as  shall  be 
shewn  more  hereafter  :  and  therefore  when  war  happened  between 
the  two  crowns,  remaneai  personaliti^rquilibet  eortcm  cum 
€0,  cut  fecerat  ligeandam,  S,' facial  serviliuni  dehiluni  ei,  [  69  ]] 
cum  quo  non  stetcrat  in  persona,  namely,  the  service  due 
from  the  feud  or  fee  he  holds:  but  this  did  not  always  satisfy  the 
prince,  cum  quo  non  sleterat  in  persona,  but  their  possessions  were 

(<)  The  case  here  put  by  our  autlior  is  evidently  meant  of  a  private  subject's  swearing 
alligeance  to  a  foreign  prince,  and  lias  no  relation  to  a  national  withdrawing  alligeance 
from  a  prince,  who  has  abdicated  the  throne. 

(u)   Traclat  5.  De  Exceptionibus. 


birth,  that  the  Queen's  claim  to  subjection  and  her  subject's  claim  to  liberties  arise.  Both 
claims  spring  together  and  from  the  same  source.  The  subject's  life  is  the  natural  term 
of  both.  Yet  it  is  always  possible  that  one  of  them  may  be  determined  incidentajly  and 
before  its  time.  The  subject  may  forfeit  his  liberties,  or  the  Queen  may  by  her  own  act, 
withdraw  him  from  her  subjection.  In  the  first  case,  the  Queen  is  not  deprived  of  her 
Fubjfct,  notwithstanding  his  forfeiture  of  right.  In  the  second  case,  albeit,  no  longer  de 
facto  true  and  lawful,  he  still  retains  the  rights  wiiich  were  vested  in  him  by  his  birth. 
Tliere  is,  indeed,  a  close  connexion  between  this  fallacy  and  the  proposition  of -American 
jurists — false  as  we  have  seen  it  to  be — that  it  is  in  the  power  of  the  citizen  to  renounce 
his  alligeance,  and  without  ihe  consent  of  Ijis  sovereign,  to  take  upon  hin  self,  in  all 
respects,  the  character  and  rights  of  a  citizen  of  a  foreign  state.  To  this  pretension  it  is 
once  f()r  all  to  be  replied,  that  the  eliaracter  of  a  British  subject — once  vested  by  birth — 
cannot  be  extinguished  or  suspended  by  the  mere  adoption  of  any  foreign  allegiance. 
The  party  may  withdraw  himself  from  the  local  obedience  and  protection  of  his  sove- 
reign, and  yet  not  cease  to  be  within  her  actual  obedience  and  protection.  {Calvin's  Case, 
7  Rep.  8.0.)  He  may  place  himself  beyond  the  jurisdiction  of  the  public  justice  of  his 
country,  and  thus  forego  its  benefits;  but  he  cannot  place  himself  be}'ond  the  jurisdic- 
tion of  the  executive  power.  The  Queen's  remedial  writs  cannot  by  any  means  extend 
into  his  foreign  domicil;  but  those  that  are  mandatory  and  not  remedial,  do  reach  him 
even  there.  TJiey  arc  not  tied  to  any  place,  but  do  follow  subjection  and  ligeance  in 
what  country  or  nation  soever  the  subject  is.  (7  Rep.  20.  a.)  Amittit  regnum  sed  non 
Rcgem.  Amittit  patriam,  sed  non  patrem  patria."  (7  Id.  2.  b.)  See  2  Kent's  Com. 
43.49. 

[9]  The  doctrine  of  perpetual  allegiance  is  riot  applied  by  the  British  courts  to  the  Arneri- 
can  ante  nati-.  Their  doctrine  is,  that  the  American  ante  nnti,  by  remaining  in  America 
alter  the  peace, lost  their  character  of  British  subjects;  and  our  rule  is,  that  by  witlidraw- 
ing  from  this  country  and  adhering  to  the  Brit'sh  government,  they  lost,  or  rather  never  ac- 
quired the  character  of  American  citizens.  The  right  of  election  in  all  revolutions  like 
that  of  America  is  well  cstablislied.  IngUs  v.  The  Sailor's  Smiff  Harbour,  3  Peters,  99. 
The  Revolution  severed  the  ties  of  allegiance;  and  made  the  inhabitants  of  each  country 
aliens  to  the  other.    3  Story  on  Cons.  571. 


69  mSTORIA  PLACITORUM  CORONvE. 

usually  seized,  and  rarely  or  not  without  difficulty  restored  without  a 
capitulation  to  that  purpose  between  the  two  crowns.  Vide  Clause. 
15  H.  3.  m.2l.  pro  Henrico  de  la  Vagnr,  Clans.  20  H.  3.  m.  1.  pro 
Simone  Montford  ixnd  Placita  Pari.  IS  E.  \,{cc)  the  petition  ofjhe 
earl  of  Eive  in  France  for  the  castles  of  Hasting  and  Tikchiul  is 
answered,  "  Quandocunque  placuerit  domino  regi  Franciae  terras  & 
tencmenta  honiinibus  istius  regni  restituere,  quee  sua  fuerunt,  in  po- 
testate  ipsius  domini  regio,  quod  ipse  dominusrex  Jinglise  de  castris 
&  terris  prsedictis  preedicto  comiti  reddendis  faciet,  quod  de  consilio 
suo  viderit  esse  faciendum." 

But  sometimes  it  fell  out,  that  the  inconsiderateness  of  persons 
carried  them  upon  presumptions  of  some  advantages  to  make  alli- 
geance  to  both  princes;  and  then  the  successes  of  either  side  ren- 
dered them  within  the  penalty  of  the  breach  of  alligeance  to  the 
adverse  party. 

Peter  Brian  had  tlie  earldom  of  Pichmond  here  in  England,  and 
held  it  of  the  crown  of  Engla)id,and  the  duchy  oi Britany  in  France, 
■which  was  held  of  the  crown  o{  France,  (though  Brompton  tells  us, 
that  by  an  agreement  between  Richard  I.  and  the  king  of  France 
sub  anno  1191.(y)  the  seigniory  thereof  was  bestowed  upon  the 
king  of  England)  he  was  an  homager  of  the  crown  of  France,  and 
iipon  some  agreement  between  him  and  the  king  of  England  touch- 
ing a  war  with  France,  he  came  into  England,  and,  as  it  seems, 
swore  fealty  to  the  crown  of  England;  but  afterwards  he  fell  in 
again  with  the  king  of  France,  and  betrayed  the  army  of  the  king 
of  England,  and  per  internuncios  reddidit  Anglas  regi  honiagium; 
but  he  lost  himself  with  both  crowns:  the  king  of  France  disposed 
of  the  duchy  oi  Brit  any  to  his  son,  and  the  king  of  England  ^Q.\e 
the  earldom  of  Richmond  to  Peter  de  Sabaiidia;  tho  upon  an 
exchange  he  afterwards  took  it  back,  and  restored  it  to  a 
[  70  ]  son  of  the  former  earl.  71/.  Paris  siib  anno  1234./?,  406. 
and  Clans.  \9  H.  3  m.  17.  dors,  where  in  a  letter  by  the 
king  to  the  pope  the  whole  story  is  related. 

After  this,  John  de  Breme  otherwise  Montford  descended  from 
the  above-mentioned  Peter,  falling  in  with  king  Edward  III.  after 
his  assumption  of  the  title  of  France,  was  restored  to  the  duchy  of 
Britany  and  earldom  of  Richmond;  and  Clans.  19  E.  III.  p.  1.  m. 
14.  dors,  did  his  lige  homage  to  king  Edward  III.  as  king  oi France 
in  these  words:  "  Monseigneur,  jeo  vous  recognoisse  droiturell  roy 
de  France,  et  a  vous,  come  a  mon  seignior  liege  et  droiturell  roy  de 
France,  face  mon  homage  pur  le  dit  duchy  de  Bretagne,  quel  jeo 
claime  tener  de  vous,  mon  seignior,  et  deveigne  vostre  iiome  lige  de 
vie,  et  de  mcmbre,  et  de  terrene  honor,  a  vivre  et  morir  cquntre  touts 
gents."  His  son  John  de  Montford  falling  back  to  the  king  of 
France  lost  the  earldom  of  Richmond  by  judgment  in  parliament, 
7  R.  2.  but  entered  de  recordo.  Rot.  Pari.  14  R.  2.  n.  14. 

These  ditficulties  befel  those,  that  were  adfdem  utriusqne  regis; 

{x)  Ryley's,  Plac.  Fad. p.  20.  (y,  Vide  Bioiintov,p.  1106. 


HISTORIA  PLACITORUM  CORONiE.  70 

they  were  sure  to  be  losers  on  one  side,  and  sometimes  on  both 
sides. 

And  thus  far  touching  the  oath  of  aUigeance  or  fea]ty.[10.] 

II.  The  second  express  obUgation  of  the  subject  to  his  prince  is 
that  of  homage. 

This,  though  it  be  no  oath,  but  a  very  solemn  profession  of  duty, 
yet  it  hath  always  fealty  performed  with  it,  and  after  it;  for  homage 
draws  with  it  fealty,  which  in  case  of  simple  homage  done  to  a  sub- 
ject is  with  the  same  exceptions  as  the  homage  is;  but  in  case  of 
hoTnagium  ligeum  it  hath  attending  upon  the  performance  thereof 
fidelilas  Ugea,  or  alligeance. 

The  kinds  of  homage  are  three:  1.  Simple,  as  that  which  is  per- 
formed to  a  mere  subject  by  virtue  of  his  tenure.  2.  Homagiiun 
ligeum.     3.  Homagitirn  mixtxim,. 

1.  The  simple  homage,  which  is  performed  barely  by  reason  of 
tenure,  is  that  which  Littleton  describes  both  in  the  words  and  cere- 
monies, Lib.  II.  tap.  \.{z)  wherein  always  there  is  an  exception  of 
the  faith  due  to  the  king. 

2.  Homagium  ligeum,  which   is  thus:   "Jeo  deveigne 

vostre  home  de  ceo  jour  en  avant  de  vy  et  membre,  et  de   [  71  ] 
terrene  honor,  el  a  vous  serra  foyal  et  loyal,  et  foy  a  vous 
portera  contre  touts  gents,  qe  viure  point,  ou  morierj"  this  is  the 
form,  that  Fleta  gives  Lib.  III.  ca.  16.(«) 

The  ceremony  is  the  same,  when  done  to  the  king,  as  when  it  is 
performed  to  a  mesne  lord,  only  Kot.  Pari.  18  H.  6.  n.  58.  the  cere- 

{z)  Sect.  85.  (a)  Sect.  21. 


[10]  It  has  been  a  question,  says  Chancellor  Kent,  frequently  and  gravely  argOed,  both 
by  llieoretical  writers,  and  in  forensic  discussions,  whether  the  English  doctrine  of  per- 
petual allegiance  applies  in  its  full  extent  to  this  country.  The  writers  on  public  law 
have  spoken  loosely,  but  generally  in  favour  of  the  right  of  a  subject  to  emigrate,  and 
abandon  his  native  country,  unless  there  be  some  positive  restraint  by  law,  or  he  is  at 
the  time  in  tlie  possession  of  a  public  trust,  or  unless  his  country  be  in  distress,  or  in 
war,  and  stands  in  need  of  his  assistance.  Cicero  regarded  it  as  one  of  the  firmest  foun- 
dations of  Roman  liberty,  that  the  Roman  citizen  had  the  privilege  to  stay  or  renounce 
his  residence  in  the  state,  at  pleasure,  {Orat.  pro  Balbo,  ch.  13.)  The  principle  which  has 
been  declared  in  some  of  our  state  constitutions,  that  the  citizens  have  a  natural  and  in- 
herent right  to  emigrate,  goes  far  towards  a  renunciation  of  the  doctrine  of  the  English 
Common  Law,  as  being  repugnant  to  the  natural  liberty  of  mankind,  provided  we  are  to 
consider  emigration  and  expatriation,  as  words  intended  in  these  cases,  to  be  of  synony- 
mous import.  But  the  allegiance  of  our  citizens  is  due,  not  only  to  the  local  government 
under  which  they  reside,  but  primarily  to  the  government  of  the  United  States;  and  the 
doctrme  of  final  and  absolute  expatriation  requires  to  be  defined  wit!)  precision,  and  to 
be  subjected  to  certain  established  limitations,  before  it  can  be  admitted  into  our  juris- 
prudence, as  a  safe  and  practicable  principle,  or  laid  down  broadly  as  a  wise  and  salutary 
rule  of  national  policy.  The  question  has  been  frequently  discussed  in  the  courts  of  the 
Lnited  Slates,  but  it  remains  to  be  definitively  settled  by  judicial  decision."  2  Com.  43. 
He  then  enters  into  an  analysis  of  the  American  cases  on  the  subject,  and  concludes 
thus:  "  From  this  historical  review  of  the  principal  discussions  in  the  Federal  Courts  on 
this  interesting  subject  in  American  jurisprudence,  the  better  opinion  would  seem  to  be, 
that  a  citizen  cannot  renounce  his  allegiance  to  the  United  States  without  the  permission 
of  government  to  be  declared  by  law;  and  that  as  tiiere  is  no  existing  legislative  regula. 
tion  on  the  case,  the  rule  of  the  English  Common  Law  remains  unaltered."  j>.  49.  See 
Serg.  on  Const.  304.    Raicle  on  Const.  96. 


71  HISTORIA  PLACITORUM  CORONA. 

mony  of  kissing  the  king  was  dispensed  with  by  reason  of  the  danger 
of  contagion  in  time  of  plague. 

And  touching  this  homage  these  things  are  observable : 

1.  It  difiers  from  the  oath  of  alHgeance,  in  that  this  is  only  hy  a 
profession;  but  alhgeance  is  by  an  oath,  though  the  oath  of  ailige- 
ance  also  accompany  it, 

2.  It  differs  in  this,  that,  whereas  all  men  above  the  age  of  twelve 
years  are  to  take  the  oath  of  alligeance,  whether  they  hold  land,  or 
not ;  yet  lige  homage  is  not  to  be  performed  but  by  three  sorts  of 
persons:  1.  Such  as  hold  of  the  king  by  homage,  which  though  it  be 
performed  in  respect  of  tenure,  yet  it  is  homaghim  ligeum,  because 
performed  to  the  sovereign,  and  without  any  exception  of  the  ho- 
mage due  to  inferior  lords.  2.  Such  as  are  dukes,  earls,  or  viscounts, 
or  barons,  though  they  hold  nothing  of  the  king,  yet  at  the  corona- 
tion they  perform  a  lige  homage;  the  tenor  whereof  runs  thus: 
"  I  become  your  liege  man  of  life  and  limb,  and  of  earthly  worship, 
and  faith  and  truth  I  shall  bear  unto  you  to  live  arid  die  against  all 
manner  of  tblk:  so  God  me  help!^^  and  then  he  toucheth  the  crowil, 
and  then  toucheth  the  ground  ;  nota,  it  refers  not  to  any  lands,  3,  By 
prelates  or  bishops;  and  this  is  not  only  at  the  coronation  of  the 
king,  but  after  their  election,  and  before  the  restitution  of  their  tem- 
poralities.   Vide  Statute  25  H.  S  cap.  20. 

Anciently  the  clergyman  quarrelled  at  the  performance  of  homage 
to  the  prince ;  but  by  the  constitutions  of  Clarendon  set  down  by 
Maltheio  Paris,  p.  101.  they  were  bound  to  perform  it,  and  it  hath 
been  hitherto  practiced ;  only  to  gratify  them  in  something  antiently 
it  was  indulged  in  this  manner,  viz:  "Faciet  electus   homagium  & 

fidelitatem  regi,  sicut  ligeo  domino  suo,  de  vita,  &  mem- 
j]  72  ]  bris,  &  de  honore  terreno,  salvo  ordine  suo,  priusquam  con- 

secretur;"  and  though  I  do  not  find  this  salvo  ordine  in- 
serted in  after-times,  yet  there  hath  been  a  temperament  added  to 
that  homage  performed  by  clergymen,  which  it  seems  satisfied 
their  scruple,  their  homage  running  thus:  "I  do  you  homage  and 
faith,  and  truth  bear  unto  you,  our  sovereign  lord,  and  to  your  heirs 
kings  of  England,  and  I  shall  do,  and  truly  acknowledge  the  service 
of  the  lands,  which  I  claim  to  hold  of  you  in  the  right  of  the  church, 
as  God  me  help." 

And  this  is  fealty,  as  well  as  homage,  for  it  is  accompanied  with 
an  oath,  though  it  hath  the  solemnity  of  genuflexion,  and  kissing  the 
king's  check. 

3.  The  agreements  and  differences  between  that  homage,  that  is 
simply  feudal,  or  by  reason  of  tenure  only,  and  this  homage,  that  is 
homagium  ligcum,  are  these:  1.  Because  though  homage  is  not  to 
be  done  by  any,  but  those  that  hold  by  that  service,  or  by  the  no- 
bility, or  clergy,  as  before:  yet  when  done  to  the  king,  it  becomes 
homagium  ligeum  in  respect  of  the  person  to  whom  it  is  performed. 
2.  If  it  be  homage  done  to  the  king,  it  is  homagium  ligeum,  and 
hatli  no  exception  of  homage  due  to  others.  3.  But  principally  the 
diUcrencc  is  in  the  eflect  of  it,  wiiich  is  excellently  described  by 


HISTORIA  PLACITORUM  CORONiE.  72 

Terrien'm  his  Comment  upon  the  Custumer  of  Normandy ,  Lib.  III. 
cap.  1.  Feudal  homage,  that  is  simply  such,  binds  only  ratione 
feodi;  therefore  if  the  homager  alien,  pr  deliver  to  his  lord  his  fief, 
or  fee,  he  is  discharged  of  the  obligation;  but  lige  homage,  tho' 
it  may  be  performed  by  reason  of  the  fee  in  its  kind  or  species, 
yet  it  principally  binds  the  person;  and  though  the  fief  itself  be 
aliened,  or  transferred  to  another,  yet  the  obligation  of  lige  homage 
continues. 

3.  There  are  certain  liomages,  that  are  mixt,  and  partly  lige,  and 
partly  not;  and  they  are  of  two  kinds:  1.  When  the  homage  is  per- 
formed to  a  prince,  that  is  sovereign  in  relation  to  his  subjects,  yet 
owes  a  subjection  to  some  other  prince,;  this  was  the  case  of  the 
prince  of  tVales,  and  the  king  of  Scots  before  mentioned,  the 
homage,  that  they  performed  to  the  king  of  England,  was  simply 
hge  homage,  as  we  may  read  before,  and  particularly  in  Walsing- 
ham's  Ypodigma  News triss  sub  anno  1291,(6)  where  the 
tenor  of  the  homage  of  John  de  Baliol  king  of  Scots  is  en-  [  73  ] 
tered  in  hxc  verba  :  "  Domine  Edvarde  rex  Jlnglise,  superior 
damine  regni  Scofix,ego  Johannes  Baliol  rex  Scoiise  recognosco  me 
hominem  vestrum  ligeum  de  toto  regno  Scoti3e,&L  omnibus  pertinentiis, 
&  hiis,quae  ad  hoc  spectant ;  quod  regnum  meum  teneo  &  de  jure  debeo 
&  clamito  tenere  haereditarie,  de  vobis  &  hseredibus  vesiris  regibus 
jingliae,  de  vita  &  de  membris,  &  de  terreno  honore  contra  omnes 
homines,  qui  possunt  vivere  &  mori." 

I  mention  this  homage  of  the  king  of.  Scots  not  to  revive  the 
ancient  controversy  touching  the  subordination  of  that  kingdom  to 
tliis,  for  that  difference  hath  been  long  settled  and  at  peace ;  but  only 
to  apply  my  instances  of  the  various  sorts  of  homages  performed  by 
sovereign  princes. 

But  the  homage,  that  was  performed  by  their  subjects  to  them, 
was  partly  lige  homage,  and  partly  not;  it  was  lige  homage  as  to 
between  the  king  of  Scots  and  them,  and  as  to  all  persons  in  the 
world, except  the  king  of  England;  for  the  king"  of  Scots  and  prince 
of  Wales  had  the  rights  of  sovereignty ^to'a  imperii  as  in  relation  to 
their  subjects  and  all  others,  but  the  king  of  England. 

But  in  relation  to  the  king  of  England,  the  homage  performed 
to  the  prince  of  Wales  or  king  of  Scots  was  not  lige  homage ;  for 
there  was  an  exception  either  expressed  or  implied  at  least  salvd 
fide  domini  regis  Jinglix,diS  appears  plainly  above. 

2.  Another  instance  of  a  mixt  homage  is,  when  a  sovereign  prince 
hath  a  vassalage,  or  possession  in  another  absolute  prince's  do- 
minion; this  was  the  case  of  the  king  oi  England,  in  relation  to  the 
lordships  and  seignory  he  had  in  France,  as  Jiquitaine,  ^dnjou, 
and  Picardy,^'c.  which  were  all  held  of  the  crown  of  France;  these 
descended  to  king  Edward  III.  the  king  of  France  required  lige 
homage  from  the  king  of  England  for  these  territories;  the  king  of 
England,  as  king  of  England,  had  no  dependence  on  France,  and 
therefore  for  the  more  caution  performed  to  the  king  of  France  for 

[h)  ^1292.p.  477.  479.  480. 


73  HISTORY  PLACITORUM  CORONA. 

the   dntchy  of  Jlquitaim  and   other  his   possessions  in  France  5 
general  homage  by  these  words,  "Nous  entromysin  I'hom- 
[  74  lage  de  roy  de   France  per  ainsi,  come  nous  et  nous  pre- 
decessors   dues    de     Giiyeyi    estoient    jades    enterent    en 
I'homage  des  royes  de  France  pur  temps  esteant;"  and  aUhough 
afterwards  a  settled  form  of  homage  was  prescribed  in  this  case,(c) 
yet  most  evident  it  is,  that  it  was  not  hornagiimi  ligeum,  but  only  a 
feudal  homage  relative  to  those  territories  of  the  crown  of  France, 
but  not  at  alt.  with  any  relation  to  the  person  or  crown  of  the  king' 
of  England. 

For  the  Ymg  oi  England  had  a  double  capacity,  one  as  an  ab- 
solute prince,  that  owed  no  subjection  to  the  crown  of  France;  nor 
to  any  other  king,  or  state  in  the  world;  in  this  capacity  he  neither 
did  nor  could  do  homage  to  the  king  of  France ;  he  had  another  ca- 
pacity, as  duke  oi  Jiquilaine,VLndi  in  that  capacity  he  owed  di  feudal, 
but  not  /)er5o?io/_subjection  to  the  crown  of  France  ;  and  in  this  latter 
capacity  only,  and  as  a  ditierent  person  from  himself,  as  king  of 
England,  he  did  the  homage,  which  was  in  truth  no  lige  homage, 
but  a  bare  feudal  homage,  which  I  rather  mention  to  rectify  the 
mistakes  of  those  that  call  it  a  lige  homage. 

But  by  the  way  1  must  observe,  this  feudal  homage,  as  duke  of 
K^quitaine,  lasted  not  long  ;  for  in  14  ^.  3  the  king  of  England  as- 
sumed the  title  of  king  of  France  together  with  the  arms  of  France 
by  hereditary  descent,  which  style  his  successors  have  ever  since 
used. 

And  indeed  the  name  of  lige  homage  from  him  that  was  king-  of 
England,  to  the  king  of  France,  though  purely  in  the  capacity  of 
duke  of  Aquilaine,  sounded  so  ill,  that  when  a  peace  was  in  treaty 
between,  the  king  of  France  and  Richard  II.  viz.  rot.  pari.  \1  R. 
2  n.  16.  the  entry  is  made,  "Fait  a  remember  qe  le  roy,  seigneurs, 
chivalers,  et  justices  assenterent  en  cest  parliament  a  la  pees,  purensi 
cj£  noslre  dit  seigneur  le  roy  ne  face  homage  lige,  et  sauant  touts  dits 
le  liberty  de  la  person  nostre  seigneur  le  roy,  et  de  son  royalme  de 
Angleterre  et  de  ses  liges  du  dit  royalme,"  and  with  power  to  resort 
to  the  title  of  the  crown  of  France,  in  case  of  breach  of  league  by 
the  king  of  France;  this  is  farther  arnplified  by  the  speech  made 
openly  by  the  speaker  of  the  house  of  commons.  Ibid.  n. 
[  75  ]  17.  The  homage  here  meant  was  with  relation  to  the 
duchy  of  Jlquilaine,  which  upon  this  treaty  was  to  be  de- 
hvered  to  the  king  of  England. 

And  thus  mucli  touching  these  two  securilies  of  the  subject's  alli- 
geance  to  the  king  of  England,  wherein  I  have  been  the  larger,  be- 
cause many  things  occur  in  this  business,  that  give  some  light  to 
antiquity,  and  do  not  so  commonly  occur,  and  because  the  great 
brand  of  high  treason  is,  that  it  is  a  violation  or  breach  of  that  sacred 
bond  from  the  subject  to  his  king  commonly  called  alligeancc,  for 
the  security  whereof  this  oath  of  alligeance  and  lige  homage  were 

(c)   Vide  Vat.  5  E.  3.  i)art  1.  m.  17. 


HISTORIA  PLACITORUM  CORONA.  75 

instituted,  and  effectually  expounds  the  obligation,  and  duty  of  that 
allig^ance,  that  is  due  from  the  subject  to  the  king. 

fshall  now  only  mention  those  two  eminent  oaths  of  supremacy, 
and  obedience,  though  there  were  besides  them  other  temporary  oaths 
relating  to  the  crown,  as  that  of  25  H.  8.  cap.  22.  26  H.  8.  cap.  2.  2S 
H.  8  cap.  7.  35  H.  8.  cap.  1. 

The  supremacy  of  the  crown  of  England  in  matters  ecclesiastical 
is  a  most  unquestionable  right  of  the  crown  of  England,  as  might 
be  shewn  by  records  of  unquestionable  truth  ^nd  authority,  but  this 
is  not  the  business  of  this  place;  yet  nevertheless  the  pope  made 
great  usurpations  and  encroachments  upon  the  right  of  the  crown 
herein. 

King  Henry  VIII.  in  the  twenty-fifth  year  of  his  reign  having 
pared  off  those  incroachments  in  a  good  measure  by  the  statute  of 
25  H.  8.  capp.  19,  20,  21.  in  the  twenty-sixth  year  of  his  reign  the 
supremacy  in  matters  ecclesiastical  is  rejoined  and  restored  to  the 
crown  by  the  statue  of  26  H.  S.  cap.  1. 

The  papal  encroachments  upon  the  king's  sovereignty  in  causes 
and  over  persons  ecclesiastical,  yea  even  in  matters  civil  under  that 
loose  pretense  of  in  or  dine  ad  spiritualia,  had  obtained  a  great 
strength,  and  long  continuance,  notwithstanding  the  security  the 
crown  had  by  the  oaths  of  fealty  and  alligeance;  so  that  there  was 
a  necessity  to  unrivet  those  usurpations  by  substituting  by  authority 
of  parliament  a  recognition  by  oath  of  the  king's  supremacy  as  well 
in  causes  ecclesiastical  as  civil. 

And  therefore  after  those  revolutions,  that  happened  in 
the  life,  and  on  the  death  oi  Henry  VIII.  Edward  VI.  and  [  76  ] 
queen  Mary,(\\\ee\\  Elizabelh  coming  to  the  crown,  the  oath 
of  supremacy  was  enacted  by  the  statute  of  1  E/iz.  cap.  l,for  the 
better  securing  of  the  supreme  authority  of  the  crown  of  England 
as  well  in  matters  ecclesiastical  as  temporal ;  which  I  shall  not  here 
irepeat,  but  reserve  the  same,  and  what  is  proper  to  be  said  touching 
it,  to  a  particular  chapter  hereafter.(fl^) 

Afterwards  the  dangerous  practices  of  popish  recusants  gave  the 
occasions  of  enacting  of  the  oath  of  obedience  by  the  statute  of  3  Jac. 
cap.  4,  which  I  shall  likewise  refer  to  its  proper  place. 

And  thus  far  touching  alligeance,  and  the  securities  of  the  same  by 
the  oath  of  alligeance,  and  the  profession  of  lige  homage. [11] 

(d)  Vide  postea  cap.  25. 

[11]  The  Acts  of  Congress  relating  to  naturalization  are,  An  Act  to  establish  an  uni- 
form rule  of  naturalization,  26  March,  1790.  An  Act  to  establish  an  uniform  rule  of 
naturalization  and  to  repeal  the  acts  heretofore  passed  on  that  subject,  January  29, 1795. 
An  Act  to  establish  an  uniform  rule,  &.C.,  and  to  repeal,  &c.,  April  14,  1802.  Ch.  '28. 
An  Act  in  addition  to  an  Act  entitled,  "An  Act  to  establish,  &c.,  and,  to  repeal,"  &c., 
March  *,6,  1804.  Ch.  47.  An  Act  relatintr  to  evidence  in  cases  of  naturalization,  March 
22,  1816.  CA.  32.  An  Act  in  further  addition  to  an  "Act  to  establish,  &,c.,  and  to 
repeal,"  Ace,  Maij2G,  1824.  Ch.  186.  An  Act  to  amend  the  Acts  concerning naturaliza- 
Uon,  J»/oy,  24,  le28.C/<.  116.  • 
VOL.  I. — 10 


76  HISTORIA  PLx\CITORUM  CORONiE. 


CHAPTER  XI.  ■* 

CONCERNING    TREASONS    AT    THE  COMMON    LAW,  AND    THEIR    UNCER- 
TAINTY. 

Having  shewn  in  the  former  chapter  the  kinds  and  bonds  of  fidelity 
and  alligeance  from  the  subject  to  the  king,  I  come  to  consider  o/ 
those  crimes,  that  in  a  special  manner  and  signally  violate  that  allige- 
ance, namely  high  treason. 

At  Common  law  the  crime  of  high  treason  had  some  kinds  of  limits 
and  bounds  to  it. 

In  the  time  of  Henry  II.  Glanvili  who  then  wrote  Lib. 
\_  11  ~\  IV.  cap.  1  4'  7,  tells  us  of  four  kinds  of  crimmse  Ixsas  mojes- 
tatis,  viz.  de  niorte  regis,  de  seditione  regni,  de  sedilione 
exercittis  regis,  and  the  counterfeiting  of  the  great  seal ;  for  as  to  the 
counterfeiting  of  money,  that  came  under  the  title  of  Crimen  falsi, 
and  the  punishment  thereof  antiently  was  various;  but  of  that  par- 
ticular hereafter. 

Bructon,\\\?ii  wrote  in  the  \\mQoiHenry\\\.IAh.\\\.cap.^.  "Siquis 
avisn  temerario  machinatus  sit  in  mortem  domini  regis;  vel  aliquid 
egerit,  vel  agi  procuraverit  ad  seditionem(rt)  domini  regis,  vel  exer- 
citus  sui ;  vel  procurantibus  auxilium  &  consilium  pra^buerit,  vel  con- 
sensum,  licet  id,  quod  in  voluntate  habuerit,  non  perduxerit  ad  effec- 
tum  ;"  to  which  he  adds  counterfeiting  of  the  seal  and  money; 
which,  though  they  come  under  crimen  falsi,  yet  are  reckoned  by 
him  among  the  crimina  Ixsse  niajesiatis;  tho  in  these  old  authors 
treason  is  sometimes  expressed  by  the  name  of  sedition,  yet  that 
word  is  too  general  and  comprehensive  of  other  ofienses  not  capital, 
as  well  as  of  treason ;  and  therefore  a  charge  of  sedition  against  the 
king,  or  of  exciting  sedition,  or  of  speaking,  writing,  or  doing  any 
\.\\m2,  seditiously,  doih  not  amount  to  a  charge  of  treason;  and  there- 
fore It  was,  that  in  the  case  oi  Selden  and  others,  Trin.  5  Car.  B.R.{b) 
when  upon  an  habeas  corpus  tiie  parties  were  returned  committed 

(a)  In  the  case  of  Mr.  Selden  this  is  supposed  to  be  the  true  reading,  but  in  most  of 
tlie  jli-S'/S.  of  Bracton  tlie  word  in  this  place  is  seductionem,  altlio  in  otlier  places  of 
the  same  chapter  the  word  seditio  is  used:  Fleta  makes  frequent  use  of  the  word  Seduc- 
tio,  Lih.  I.  cap.  20.  §  1  cap.  21 .  §  §  1,  2,  3.  (the  last  of  vi^hich  places  seems  to  be  a  direct 
transcript  from  Bracton)  thou;,'h  the  word  seditio  is  once  used  by  him  dicto  capite,  §  8. 
and  Bracton  afterwards  in  this  same  cliajjler  styles  a  traitor  sedvctor. 

Hengham,  cap.  2.  and  Glauvil,  Lib.  I.  cap.  2.  botii  of  them  phcc  scditionem  in  the  rank 
of  treasons,  and  so  it  was  esteemed  by  tiic  t'ivil  law.  Difr.  Lib,  XLVIII.  tit.  4.  ad  leg.  Jul.  ' 
Majeslalis,  I.  1.  tit.  19.  De  pasnis,  I.  38.  §  2.  Seditio  continued  to  be  the  technical  word 
in  iejjal  proceedings  (as  will  appear  from  several  records  hereafter  quoted)  until  the  terms 
proditio  ^' prodilorie  \nc\ai\cd  In  its  room,  which  last  word  must  now  be  necessarily 
used  in  every  indictment  of  treason.  3  Co.  Inst.  4.  12,  1.5. 

(6)  Mich.  5.  Car.  I.  Vide  Rusliv-orlh's  Historical  Collections,  Vol.  I.  p.  679.  Appendix,  p. 
18,  6(c.  Seldeni  Opera,  Vol.  \'\.p.  1938.  'I'lic  court  was  content,  that  they  should  be 
bailed,  but  said,  that  tliey  ou;rht  to  find  sureties  also  for  their  good  behaviour:  they  had 
their  sureties  ready  for  the  bail,  but  they  were  remanded  to  the  Tower,  because  they 
would  not  find  sureties  for  the  good  behaviour.  SeUhn  was  notb.iiled  till  May  1(531,  and 
not  discharged  from  his  bail  till  Januanj  1G31.  Vindi^a  Maris  Clausi.  Stldeni  Opera, 
Vol.lV.p.li21,SfC. 


HISTORIA  PLACITORUM  CORON.^.      _  78 

ly  the  privy  council  by  the  kim^^s  command  for  stirring  up  sedition 
against  the  king,  the  prisoners  were  bailed  in  the  king's  court, 
because  it  amounted  not  to  a  charge  of  treason,  for  sedition  in  a  true 
legal  signification  doth  not  import  treason.[l] 

Fleta,  who  wrote  in  the  time  of  Edward  I.  agrees  almost  verba- 
tim with  Bracton,  viz.  Lib.  I.  cap.  20,  21.(c) 

Brifton,  who  made  his  book  in  the  time  also  of  king  Edward  I. 
reckons  up  treasons  much  in  the  same  manner,  yet  makes  some  addi- 
tions, cap.  8.  de  treson',  "  Grand  treson  est  a  compasser  nostre  mort, 
ou  disheriter  nous  de  nostre  royalme,  on  de  fauser  nostre  seal,  ou  de 
countrefaire  nostre  monoye,  ou  de  la  retoundre." 

And  cap.  22.  de  appeles:  '•  Sont  ascunes  felonies,  que  touchent 
nostre  snyt,  et  poient  estre  suys  pur  nous,  sicome  de  vers  nos  mortels 
enemies,  de  nostre  seal,  de  nostre  corone,  et  de  nostre  monoye  fause." 

Again;  "  En  primes,  c'est  a  dire,  de  appels  de  felonies,  que  poient 
estre  faitz  par  nous,  et  nemye  pour  nous,  sicome  de  treson,  et  de  com- 
passement  purveu  vers  nostre  persone  pour  nous  mettre  a  mort,  ou 
nostre  compayne,  ou  nostre  pere,  ou  nostre  mere,  ou  nous  enfauntz, 
ou  nous  disheriter  de  nostre  royalme,  ou  de  trahir  nostre  hoste,  tout 
ne  soit  tiel  compassement  mys  en  effect." 

And  in  the  latter  end  of  the  same  chapter,  "  Et  de  fausyn  de  nostre 
seal,  &  de  nostre  monoye,  purra  lenseur  appels  pour  nous  en  mesme 
la  manere,  et  ausi  del  purgiserde  nostre  compayne,  ou  de  nous  filles, 
ou  des  norices  de  nos  enfauntz  :(c()  En  queiix  cases  soit  le  jugement, 
de  estre  treyne,  et  pendu,  &c."  By  these  various  expres- 
sions of  Britton,  it  appears  that  the  crime  of  high  treason  f  79  ~\ 
was  very  uncertain  ;  sometimes  styled  under  the  name  of 
felony,  sometimes  had  the  punishment  of  petit  treason  applied  to 
the  crime  of  high  treason,  and  some  crimes  mentioned,  as  treasons, 
which  were  not  so  taken  by  Bracton,  or  Fleta ;  and  indeed  in  the 
farther  pursuit  of  this  argument  we  shall  find,  that  at  common  law 
there  was  a  great  latitude  used  in  raising  of  offences  into  the  crime 

(c)  He  does  not  rank  the  counterfeiting  of  the  seal  or  of  the  coin  among  the  crimina 
l(Bs<B  majestaiis  (as  Bracton  does,)  but  among  the  crimina  falsi.  Lib.  I.  cap.  22. 

{d)  According  to  tlie  Mirror  of  Justice,  p.  21,  22.  high  treason  is  committed,  1.  Per 
ceujr,  que  Occident  le  roy,  ou  compassent  de  faire.  2.  Per  ceu.x,  que  luy  disheritent  del 
royalme,  per  [ceux  que]  traliissent  un  host,  ou  compassent  de  le  faire.  3.  Per  ceux 
avowterors  que  spargissent  le  femme  le  roy,  le  file  le  roy  eignesse.  legitime,  avant  ceo  que 
die  soit  mary,  en  la  garde  le  roy,  ou  la  nurice  le  ant  le  heire  le  roy.  These  are  the  only 
offenses,  which  that  treatise  calls  Crimes  de  Majesty.  Counterfeiting  of  the  king's  seal 
or  money  is  ranked  under  Fausonnery,  p.  29.  And  every  species  of  petit  treason  is 
styled  Treason,  p.  30.  as  it  is  also  by  Britton,  cap.  8. 

It  is  one  of  the  articles  against  Roger  Mortimer,  Rot.  Pari.  4  £.  3  n.  1.  28.  E.  3  n.  8: 
that  he  compassed  to  destroy  les  nurriz  le  roy.  If  a  private  lord  was  injured  in  this  man- 
ner, it  was  anticntly  petit  treason:  "  Traditores  aulem,  qui  dominum  dominamve  inter- 
fcccrint,  vel  qui  cum  uxoribus  dominorutn  suoruni,  vel  nliabus,  vel  nutricibus  dominorum- 
concubuerint,"  &,c.  Fleta  Lib.  I.  cap.  37.  §  4.  "Ou  disparage  ma  file,  en  ma  chambre, 
ou  ma  femme,  ou  la  norrice,  de  mon  heire,  ou  le  aunt,  &c."  Mirroir  de  Justice,  p.  31. 
Vide  Britton,  cap.  22.  (70) 

[1]  For  the  distujction  between  sedition  and  hlffh  treason,  see  1  East,  P.  C.  48.  Archb, 
C.  P.  493.  5  .      • 


79  HISTORIA  PLACITORUM  CORONtE. 

and  punishment  of  treason,  by  way  of  interpretation  and  arbitrary 
construction,  whicli  brought  in  great  inconvenience  and  uncer- 
tainty.[2] 

In  the  parhament  of  33  E.  I.  now  printed, (e)  which  is  Hkewise 
•entered  P.  33  E.  I  Rot.  22  NorthH.  coram  rege:  Nicholaus  de 
Segrave  was  impeached(/)  de  eo,  quod  cum  dominus  rex  nunc  in 
ultima  guerrasua  Scotise  inter  hostes  &  inimicos  suos  extitisset,  &  idem 
Nicholaus  de  Segrave  liomo  hgeus  tenens  de  ipso  domino  rege  per 
homagium  &  fidehtatem  in  eadem  guerra  in  exercitu  &  auxilio  ipsius 
commorans  esset;  idem  Nicholaus  de  Segrave  motu  proprio,  mali- 
tiose,  &  absque  causa  contentionem  &  discordiam  versus  Johannem 
de  Crumbwell  in  eodem  exercitu  simiUter  in  auxihum  regis  existen- 
tem  movebat,"  laying  great  iniquities  to  his  charge  ;  that  Crumbwell 
offered  to  defend  himself  against  these  imputations,  as  the  king's 
court  should  award  :  Et  ad  hoc  fidem  suam  ei  dedit ;  et  post  ejusdem 
fidei  dationem  prsedictus  Nicholaus  elongando  se  &  suos,  &  extra- 
hendo  pra3dictum  Johannem  &  suos  ab  exercitu  &  auxilio  ipsius 
domini  regis,  quantum  in  ipso  Nicholao  fuit,  eundem  dominumregem 
inter  inimicos  suos  periculo  hostium  suorum  relinquendo  sprevit,  & 
prajdictum  Johannem  ad  se  defendendum  in  curia  regis  FrancisB 
adjornavit,  &  certum  diem  ei  dedit;  et  sic,  quantum  in  eo  fuit,  sub- 
mittens  &  subjiciens  dominium  regis  &  regni  Jlnglix  subjectioni 
domini  regis  Francise;  and  that  in  pursuance  thereof  con- 
[  80  ]]  trary  to  the  king's  prohibition  he  took  his  journey  towards 
France;  and  that  he  did  this  "  nequiter  &  malitios^  in  per- 
sonse  domini  regis  periculura,  curiaj  suae  contemptum,  coronte  &  dig- 
nitatis suae  regige  laesionem  &  exhoeredationem  manifestam,  &  contra 
ligeantiam, homagium,  juramentum,  &  fidehtatem,  quibus  ipse  domino 
regi  tenebatur."  Segrave  confessed  the  offence.  The  lords  in  par- 
liament are  charged  by  the  king  upon  their  alligeance  to  give  advice, 
what  punishment  was  to  be  inflicted:  "  Quiomnes  habito  super  hoc 
diligenti  tractatu  &  advisamenlo,  consideratis  &  intellectis  omnibus  in 
dicto  facto  contentis  &  per  prasdictum  Nicholauni  plene  &  express^ 
cognitis,  dicunt,  quod  crimen  hnjusmodi  meretur  poenam  amissionis 
vita;,  &c."  but  he  was  after  pardoned. 

Which  judgment  seems  to  import  no  less,  than  the  crime  of  high 
treason,  though  the  whole  judgment  be  not  declared  at  large  but 
with  an  ^'c. 

Accroaching  of  royal  power  was  a  usual  charge  of  high  treason 
antiently,  though  a  very  uncertain  charge,  that  no  man  could' well 
tell  what  it  was,  nor  what  defence  to  make  to  it. [3] 

The  great  charge  against  the  Spencers  about  the  1  E.  2.  was,  that 
they  did  accroach  royal  power,  whereof  several  instances  are 
given.(^) 

(e)  In  72yZf7/'s  Placifa  Parlimentarii7,p.^GCi. 

(/)  Per  Nic/inlauin  de.  Warcwick,  qui  scqiiilur  pro  domino  rege. 

ig)   Vide  Knighton,  p.  2545,  2547.  Edit.  Twysden. 

[2]  See  HuUntn's  Constitiitionol  Ilistonj  of  England,  vol.  '3.  p.  203. 
[3J  Luders^  Tract  on  Constructive  Treasun,  57  el  seq. 


HISTORIA  PLACITORUM  CORONiE.  SO 

The  great  charge  against  Roger  Mortimer  in  the  parliament  of  4 
E.  3,  next  to  that  of  the  procnrement  of  king  Edward  II's  death,  was 
accroaching  of  royal  power,  whereof  several  instances  are  given  ; 
but  he  had  judgment  by  the  lords  in  parliament  to  be  drawn  and 
hanged,  upon  that  article  only,  that  concerned  the  death  of  king 
Edward  II.      Vide  infra  cap.  14. 

Trin.  21  £.3.  Rot.  23.  rex  coriim  rege.  John  Gerberge,  Knt.  in- 
dicted "Quod  ipse  simul  cum  aliis  in  campo  villae  de  Royston  in  alta 
regia  strata,"  rode  armed  with  his  sword  drawn  in  his  hand  modo 
guerrino,  and  assaulted  and  took  IVilliam  de  Botelisford,  and  de- 
tained him  till  he  paid  90/ &c.  and  took  away  his  horse,  "usurpando 
sibi  infra  regnum  regis  regiam  potestalem  ipso  domino  rege  in  partibus 
exteris  existente,  contra  sui  ligeantiam,  &  regis  &  coronse  suae  pree- 
judicium  &  seditionem  manifestam:"  he  prayed  his  clergy, 
but  was  ousted  of  it,  Quia  privilegium  clericale  in  hujusmodi  [  81  ] 
casu  seditionis  secundum  legem  &  consuetudhiem  regni 
hactenus  obtentas  &  usitatas  non  est  allocanduni  :(A)  but  yet  he  re- 
fusing to  plead  was  not  convicted,  as  in  case  of  treason,  but  was  put 
to  penance,  ad  pce.nitentiam  suam;  two  of  his  companions  being 
convicted  by  verdict,  had  judgment,  quod  distrahantur  Sf  suspend- 
antur. 

This  judgment  it  seems  troubled  the  commons  in  parliament,  who 
thought  that  the  accroaching  of  royal  power  was  somewhat  too 
general  a  charge  of  treason  before  the  ordinary  courts  of  justice, 
though  it  had  been  used  in  charges  of  treason  in  parliament;  and  there- 
fore in  the  parliament  following  held  Crastino  Ililarii  21  E.  3.  n.  15] 
there  is  a  petition  in  parliament  in  these  words :  Item  prie  le  com- 
men,  qe  come  ascuns  des  justices  en  place  devant  eux  ore  de  novel 
ont  adjudges  pur  treason  accrochment  de  royal  poer,  pry  le  dit  corn- 
men,  que  le  point  soil  desclare  en  ceo  parlement,  en  quele  case  ils 
accrochent  royal  poer,  per  quei  les  seigneurs  perdent  lour  profit 
de  le  forfeiture  de  lour  tenents,  et  les  arreynes  beneficie  de  seint 
esglise. 

Ro'.  En  les  case,  on  tiel  judgments  sont  rendus,  sont  les  points 
des  tieux  treasons  et  accrochments  declares  per  mesmes  les  judg- 
ments. 

In  22  ^iss.  49.,(?)  it  appears  that  John  at  Hill  was  indicted,  and 
attaint  of  high  treason  for  the  death  of  Adam  de  Walton  nuntii 
domini  regis  missi  in  mandalum  ejus  exeqiiendum. 

And  in  the  year  before,  viz.  21  E.  3.  23.  it  seems  admitted,  that 
an  appeal  of  treason  lies  for  the  killing  one  of  malice  prepense,  that 
was  sent  in  aid  of  the  king  in  his  wars  with  certain  men  of  arms. 

King  Edward  II.  being  deposed,  and  committed  prisoner  to  Bar- 
clay  castle  under  the  custody  of  John  Matravers  and  Thomas 
Gurney,  was  there  by  the  procurement  of  Roger  Mortimer  barbar- 

(h)  For  the  same  reason  clergy  was  refused  in  Thorpe's  case,  T.21  E.  3.  Rot.  23.  Rex. 
de  quo  vide  postea, 
(i)  B,  Treason  14. 


81  HISTORIA  PLACITORUM  CORON.E. 

ously  murdered  ;  for  which  Mortimer  and  Gurney  were  attainted  of 
treason  by  judgment  of  the  lords  in  parhament.     4  E.  3.  n.  1,  5.{k) 

JMatravers  was  suspected  to  be  guilty,  but  yet  he  played 
[  82  ]  another  game,  for  though  he  knew  of  the  death  of  EJivard 
II.  yet  he  informed  Edmund  earl  of  Kent,  half  brother  to 
Edward  II.  that  he  was  living;  the  earl  therefore  with  many  others 
raised  a  force  for  his  deliverance,  but  prevailed  not,  but  was  for  that 
fact  attainted  of  treason,  anno  3  E.  3.  which  attainder  was  after- 
wards in  the  parliament  2S  E.  3.  reversed,  and  the  grandchild  of  the. 
earl  oi  Kent  restored :(/)  John  Matravers,  who  it  seems  had  animated 
the  insurrection  of  the  earl  of  Kent,  though  he  fled  into  Gtrmany^ 
yet  by  judgment  of  the  lords  in  parliament  4  E.  3  n.  3.  was  attainted 
of  treason  for  the  death  of  the  earl  oi  Kent:  the  words  of  the  record 
are,  "  Tres-touts  les  peres,  counts,  et  barons  assembles  a  ce^t  parle- 
ment  a  fVestminsier  si  out  examine  estraitment,  et  sur  ce  sont 
assentus  et  accordes,  qe  John  Matravers  si  est  culpable  de  la  mort 
Esmon  count  de  Kent  le  uncle  nostre  seigneur  le  roy  qe  ore  est, 
come  celui  qe  principalment,  trayterousment  et  fausment  la  mort  le 
dit  counte  compassa  issint,  qe  la  ou  le  dit  John  savoit  la  mort  le  roy 
Edward,  ne  per  quant  le  dit  John  par  enginous  manner  et  par  ses 
fausses  et  mauveyse  subtilties  fist  le  ditco.unte  intendre  la  vye  le  roy, 
le  quel  fausse  compassement  fust  cause  de  la  mort  le  dit  counte  et  de 
tout  le  mal  qe  s'  ensuist,  par  quoi  les  sus-dits  peres  de  la  tre  et  jugges 
du  parlement  ajuggent  et  agardent,  que  le  dit  John  soit  treine, 
penclus,  et  decoUe,  come  treitre,  queu  part,  qil  soit  estre  troue." 

Upon  this  judgment  Matravers  brought  a  petition  of  reversal. 
Pot.  Pari.  21  E.  3.  n.  65.  dors,  but  nothing  was  done  Upon  it ;  but 
Rot.  Paid.  25  E.  3.  p.  2.  n.  54,  55.  he  was  restored  by  act  of  parlia- 
ment. 

By  these  and  the  like  instances,  that  might  be  given,  it  appears, 
how  uncertain  and  arbitrary  the  crime  of  treason  was  before  the 
statute  of  25  E.  3.  whereby  it  came  to  pass,  that  almost  every  offense, 
that  was,  or  seemed  to  be  a  breach  of  the  faith  and  alligeance  due  to 
the  king,  was  by  construction  and  consequence  and  interpretation 
raised  into  the  otfense  of  high  treason. 

And  we  need  no  greater  instance  of  this  multiplication  of 
[  83  3  constructive  treasons,  than  the  troublesome  reign  of  king 
Richard  II.  which,  though  it  were  after  the  limitation  of 
treasons  by  the  statute  of  25  E.  3.  yet  things  were  so  carried  by  fac- 
tions and  parties  in  this  king's  reign,  that  this  statute  was  little 
observed;  but  as  this,  or  the  other  party  prevailed,  so  the  crimes  of 
high  treason  were  in  a  manner  arbitrarily  imposed  and  adjudged  to 
the  disadvai]tage  of  that  party,  that  was  intended  to  be  suppressed; 
so  that  de  facto  that  king's  reign  gives  us  as  various  instances  of 
these  arbitrary  determinations  of  treasons,  and  the  great  inconve- 

(fc)   Yiih.  liot.  Pari.  28  E.  3.  n.  8.  when  the  jii()frmcnt  ngaLnst  Mortimer  was  reversed. 

{I)  That  altuinder  was  reversed  lonfj  before,  uiz.  4.  T'^.'S.  Vide  Rut.  I'arl.  4  Z?.  3.  n.  II, 
12.  upon  tlio  petit,iori  oi  Edmund  liis  eldest  son,  and  Margaret  countess  dowager  oi  Kent; 
and  Edmund  the  son  was  restored. 


HISTORIA  PLACITORUM  CORONA.  83 

niences  that  arose  thereby,  as  if  indeed  the  statute  of  25  E.  3.  had 
not  been  nnade  or  in  force.  And  though  most  of  those  judgments 
and  declarations  were  made  in  parliament  ;(*)  sometimes  by  the 
king,  lords,  and  commons ;  sometimes  by  the  lords,  and  afterwards 
atiirmed  and  enacted,  as  laws;  sometimes  by  plenipotentiary  power 
committed  by  acts  of  parliament  to  particular  lords  and  others,  yet 
the  inconvenience,  that  grew  thereby,  and  the  great  uncertainty,  that 
happened  from  the  same,  was  exceedingly  pernicious  to  the  king 
and  his  kingdom. 

I  shall  give  but  some  instances.  Rot.  Pari.  3.  R.  2.  n.  IS.  Johfi 
Imperial,  a.  public  minister,  came  into  the  kingdom  by  the  safe-con- 
duct of  the  king,  and  he  was  here  murdered :(m)  and  an  indictment 
taken  by  the  coroner  upon  the  view  of  his  body,  "  Quel  case  examine 
et  dispute  entre  les  seigneurs  et  commons,  et  puis  monstre  au  roy  en 
plein  parlement,  estoit  illoques  devant  nostre  dit  seigneur  le  roy 
declare,  determine,  et  assentus,  qe  tiel  fait  et  coupe  est  treason,  et 
crime  de  royal  majesty  blemy,  en  quel  case  y  ne  doet  allouer  a  nulli 
de  enjoyer  privilege  de  clergy."(n) 

This  declaration,  it  is  true,  was  made  and  grafted  upon  the  clause 
in  the  latter  end  of  the  statute  of  25  E.  3.  touching  declaring  of  trea- 
sons by  parliament. 

In  the  parliament  of  10  R.  2.  there  was  a  large  commission  (o) 
granted  by  the  king  upon  the  importunity  of  certain  great 
lords,  and  of  tlie  commons  in  parliament,  to  the  archbishop  [  84  1 
of  Canlerhury  and  others  for  the  reformation  of  many 
things  supposed  to  be  amiss  in  the  government;  which  commission 
was  thought  to  be  prejudicial  to  the  king's  prerogative.  Vide  Rot. 
Pari.  IO^R.2.  n.  34,    Rot.  Pari.  21  R.2.n.U. 

After  this,  viz.  25  Jlug.  \\  R.  2.  the  king  called  together  the  two 
chief  justices,  and  divers  others  of  the  judges,  and  propounded  divers 
questions  touching  the  proceeding  in  that  parliament,  and  the  obtain- 
ing of  that  commission;  and  they  gave  many  liberal  answers,  and 
among  the  rest,  "  Qualem  poenam  merentur,  qui  compulerunt  sive 
arctarnnt  regem  ad  consentiendum  confectioni  dictorum  statuti,  ordi- 
nationis,  &  commissionis  ?  Ad  quam  qugestionem  unanimiter  respon- 
deruut,  quod  sunt,  ut  proditores,  merito  puniendi:  Item  qualiter  sunt 
illi  puniendi,  qui  impediverunt  regem,  quo  minus  poterat  exercere, 
quae  ad  regalia  &  pracrogativam  suam  pertinuerunt?  Unanimiter 
etiam  responderunt,  quod  sunt  ut  proditores,  etiam  puniendi,'^  with 
divers  other  questions,  and  answers  to  the  like  purpose.(/)) 

This  extravagant,  as  well  as  extrajudicial  declaration  of  treason 
by  tliese  judges,  gave  presently  an  universal  oflence  to  the  kingdom; 
for  presently  it  bred  a  great  insecurity  to  all  persons,  and  the  next 
parliament  crastino  purijicationis  11  R.  2.  there  were  divers  appeals 

C)  This  was  the  reason  why  the  statute  of  25  E.  3.  was  not  followed,  because  that 
statute  was  not  thought  to  limit  declarations  in  parliament. 

(in)  Holin.  Chron.  p.  422.  60.  b.  (n)  See  3  Co.  Instit.  8. 

(o)  See  this  coniniission  10  R.  2.  cap.  1.  and  State  Trials,  Vol.  I.  p.  3. 
(p)  See  the  questions  and  answers,  i>tate  Trials,  Vol.  I.  p.  8. 


84  HISTORIA  PLACITORUM  CORONA. 

of  treason  by  certain  lords  appellors,  wherein  many  were  convict  of 
high  treason  under  general  words  of  accroaching  royal  power,  sub- 
verting the  realm,  ^^c.  and  among  the  rest  those  very  judges,  that 
had  thus  liberally  and  arbitrarily  expounded  treason  in  answer  to 
the  king's  questions,  were  for  that  very  cause  adjudged  guilty  of 
high  treason,  and  had  judgment  to  be  hanged,  drawn,  and  quartered, 
though  the  execution  was  spared  ;((7)  and  they  having  led  the  way 
by  an  arbitrary  construction  of  treason  not  within  the  statute,  they 
fell  under  the  same  fate  by  the  like  arbitrary  construction  of  the 
crime  of  treason. 

Neither  did  it  rest  here,  for  the  tide  turned,  and  in  Rot. 
[  85  ]]  Pari.  21  R.  2.  n.  12,  13.  the  commission  before-mentioned, 
and  the  whole  parliament  of  11  R.  2.  is  repealed,  and  a  new 
appeal  of  treason  against  the  duke  of  Gloucester,  esix\  o{  Jirundel, 
and  the  commissioners  in  the  former  commission,  and  the  procurers 
thereof  under  that  common  style  of  accroaching  royal poiver,  where- 
upon divers  of  them  were  condemned  as  traitors:  and  n.  18,  there 
were  four  points  of  treason  farther  declared,  viz.  "  Chescun  qe  com- 
passe,  et  purpose  la  morte  le  roy,  ou  de  lui  deposer,  ou  de  susrend-re 
son  homage  liege,  ou  celuy,  qe  levy  le  people,  et  chivache  encountre 
le  roy  a  faire  guerre  deins  son  realme,  et  de  ceo  soit  dument  attaint, 
et  adjugge  en  parlement,  soit  adjuggez  come  traytor  de  haul  treason 
encountre  la  corone,  et  forfeit  de  lui,  et  de  ses  heyres,  quecunques 
touts  ses  terres,  tenements,  et  possessions,  et  libertys,  et  touts  autres 
inheritements,  queux  il  ad,  ou  ascun  autre  a  son  oeps,  ou  avoit  le 
jour  de  treason  perpetres,  si  bien  en  fee  tayl,  come  de  fee  simple, 
au  roy." 

These  four  points  of  treason  seem  to  be  included  within  the  statute 
of  25  E.  3.  as  to  the  matter  of  them,  as  shall  be  hereafter  shewed; 
but  with  these  differences,  viz.  1.  The  forfeiture  is  extended  farther 
than  it  was  formerly,  namely  to  the  forfeiture  of  estates-tail  and  uses. 
2.  Whereas  the  ancient  way  of  proceeding  against  commoners  was 
by  indictment,  and  trial  thereupon  by  the  country,  the  trial  and  judg- 
ment is  here  appointed  to  be  in  parliament.[4]  3.  But  that,  wherein 
the  principal  inconvenience  of  this  act  lay,  was  this,  that  whereas 
the  statute  of  25  E.  3.  required  an  overt-act  to  be  laid  in  the  indict- 
ment, and  proved  in  evidence,  this  act  hath  no  such  provision,  which 
left  a  great  latitude,  and  uncertainty  in  point  of  treason,  and  without 
any  open  evidence,  that  could  fall  under  human  cognizance,  sub- 
jected men  to  the  great  punishment  of  treason  for  their  very  thoughts, 

{q)  Tlicy  were  all  banished  to  Ireland  except  Tresilian,  wlio  was  executed  according 
to  the  judgment.     See  Slate  Trials,  Vol.  I.  p.  13,  14. 

[4]  In  1G81,  the  House  of  Commons  passed  a  resolution  to  impeach  one  Fitzkarris 
of  high  treason,  at  the  bar  of  llic  Mouse  of  Peers,  'i'ho  Lords  refused  to  entertain  the 
cause;  und  voted  that  he  should  he  jjrocecded  against  by  indictment  in  the  lower  courts. 
It  seems  to  be  the  better  opinion,  that  the  House  of  f-ords  have  no  jurisdiction  in  sucJi 
a  case.  4  BL  Cum.  25^,  though  Mr.  Ilallam  thinks  differently.  2  vol.  Cons.  Ihs.,  p.  603. 


HISTORIA  PLACITORUM  €0RON.^.  85 

which  without  an  overt-act  to  manifest  them  are  not  triable  but  by- 
God  alone. 

These  were  the  unhappy  effects  of  the  breaking  of  this  great 
boundary  of  treason,  and  letting  in  of  constructive  treasons,  which, 
by  various  vicissitudes  and  revolutions  mischieved  all  parties 
first  or  last,  and  left  a  great  unquietness,  and  unsettledness  [  86  ] 
in  the  minds  of  people,  and  was  one  of  the  occasions  of  the 
unhappiness  of  that  king. 

Henry  IV".  usurping  the  crown,  and  the  people  being  sufficiently 
sensible  of  the  great  mischiefs  they  were  brought  in  by  these  con- 
structive treasons,  and  the  great  insecurity  thereby,  Rot.  Pari.  1  H. 
4.  n.  70.  the  parliament  of  21  R.  2.  is  entirely  repealed,  that  of  11  R. 
2.  entirely  revived;  and  it  was  enacted, (r)  that  a  parliamentary  au- 
thority be  not  for  the  future  lodged  in  a  committee  of  particular  per- 
sons, as  it  was  done  2IJ?.  2.  "Et  auxint  mesme  nostre  seigneur  le  roy 
de  son  propre  motif  reherceant,  qe  come  in  le  dit  parlement  tenuz 
I'an  21,  y  fueront  ordeynes  per  estatute  phiseurs  pains  de  treason,  si 
qe  y  ne  avoit  ascun  home,  qe  sauoit,  come  il  se  deust  savoir,  de  faire, 
parler,  ou  dire  pur  doubt  des  tielx  paines,  dist,  qe  sa  voiunte  est  tout 
outrement,  qe  en  nul  temps  avener  ascun  trayson  soit  adjugges  autre- 
ment  qil  ne  feust  ordeignez  par  statute  en  temps  de  son  noble  aiel  le 
roy  E.  le  3.  qe  dieu  assoyi;  dont  les  dits  seigneurs  et  comens  fuerent 
tres  grandment  rejoyces,  et  mult  humbleraent  ent  remercierent  nostre 
dit  seigneur  le  roy."(5) 

Now  although  the  crime  of  high  treason  is  the  greatest  crime 
against  faith,  duty,  and  human  society,  and  brings  with  it  the  greatest 
and  most  fatal  dangers  to  the  government,  peace,  and  happiness  of 
a  kingdom,  or  state,  and  theretbre  is  deservedly  branded  with  the 
highest  ignominy,  and  subjected  to  the  greatest  penalties,  that  the 
law  can  inflict;  yet  by  these  instances,  and  more  of  this  kind,  that 
might  be  given,  it  appears,  1.  How  necessary  it  was,  that  there 
should  be  some  fixed  and  settled  boundary  for  this  great  crime  of 
treason,  and  of  what  great  importance  the  statute  of  25  B.  3.  was,  in 
order  to  that  end.  2.  How  dangerous  it  is  to  depart  from  the  letter 
of  that  statute,  and  to  multiply  and  enhanse  crimes  into  treason  by 
ambiguous  and  general  words,  as  accroaching  of  royal  power,  suh- 
vttrling  of  fundamental  laws,  and  the  like;  and  3.  How  dangerous 
it  is  by  construction  and  analogy  to  make  treasons,  where 
the  letter  of  the  law  has  not  done  it:  for  such  a  method  f  87  ]] 
admits  of  no  limits  or  bounds,  but  runs  as  far  as  the  wit  and 
invention  of  accusers,  and  the  odiousness  and  detestation  of  persons 
accused  will  carry  men.(/) 

(r)  See  1  H.  4.  cap.  3,  4,  ^  5.  (s)  See  1  H.  4.  cap.  10. 

(0  This  reasoning  of  our  author  is  equally  strong  against  constructive  interpretations 
of  compassing  the  death  of  the  king, 

VOL.  I. — 11 


87  HISTORIA  PLACITORUM  CORON^^ 


CHAPTER  XII. 

TOUCHING    THE    STATUTE    OF  25    E.    III.    AND    THE    HIGH   TREASONS 
THEREIN  DECLARED. 

A  Parliament  was  held  on  Wednesday  on  the  feast  of  St.  Hill.  25  E. 
,3.  at  which  parliament  the  statute  declaring  the  points  of  treason  was 
made.  The  petition  of  the  commons,  upon  which  it  was  made,  is 
Rot.  Pari.  25  E.  3.  p.  2.  n.  17.  in  these  words:  "  Item  come  les  jus- 
tices nostre  seigneur  le  roy  assignes  en  diverses  countees  ajaggent  les 
gents,  qe  sont  empeches  devant  eux,  come  treitors  par  divers  causes 
disconus  a  la  comen  estre  treison,  qe  plese  a  nostre  seigneur  le  roy 
par  son  counsel,  &  par  les  graunts  &  sages  de  la  terre  declarer  les 
points  de  treson  en  cest  pres^ent  parlement. 

"  Ro\  Quant  a  la  petition  touchant  treison  nostre  seigneur  le  roy 
ad  fait  declarer  les  articles  de  ycele  en  manner  qe  ensuit :  cest  assa- 
voir,  en  case  quant  home  face  compaser  ou  ymaginer  la  mort  nostre 
seigneur  le  roy,  ou  madame  sa  compaigne,  ou  de  lour  fitz  primer  & 
heir ;  ou  si  home  violast  la  compaigne  le  roi,  &  la  eisne  fille  le  roy 
niente  marie,  &  la  compaigne  a  leisne  fitz  &  heire  du  roi;  &  si  home 
leve  de  guerre  centre  nostre  seigneur  le  roy  en  son  royahne  ;  ou  soit 
adhereant  as  enemies  nostre  seigneur  le  roy  en  le  royahne,  donant 
a.  eux  eide,  &  confort  en  son  royalme  ou  par  aillours,  &  de  ceo  pro- 

vablement  soit  atteint  de  overt  fait  par  gents  de  lour  condi- 
[  88  1  cion;   Et  si  home  contreface  le  grant  scale  le  roy,  ou  sa 

monoie,  &  si  home  apporte  fausse  monoie  en  cest  royalme 
contrefait  a  la  monoie  dengleterre,  si  come  la  monoie  appelle  Lusse- 
6t/r^A,  ou  autre  semblable  a  la  dite  monoie  dengleterre,  sachant  la 
monoie  estre  fausse,  pur  marchander  ou  paiement  faire  en  deceit 
nostre  seigneur  le  roy  &  de  son  people :  Et  si  home  tuast  chancellory- 
treasurer,  ou  justice  nostre  seigneur  le  roi  delun  baunk,  ou  del  autre, 
justice  en  eir,  des  assisez  &  de  touz  auters  justices  assignez  a  oyer  & 
terminer,  esteantz  en  lour  places  enfesant  lour  oflice.  Et  fait  a  enten- 
dre qe  en  les  cases  susnomees  doit  estre  ajuggee  treisonce,  qe  estent 
a  nostre  seigneur  le  roi  &  a  sa  royale  majeste,  &  de  tiels  maneres  de 
treison  la  forfeiture  desescheets  appertient  a  nostre  seigneur  le  roy, 
sibien  des  terres,  &  tenementz  tenuz  des  auters,  come  de  lui  mesme : 
ouesque  ceo  il  y  ad  autre  manere  de  treison,  cest  assavoir,  quant  nil 
servant  lue  son  mestre,  une  feme,  qu  tue  son  baron,  quant  home  se- 
cular ou  de  religion  tue  son  prelate,  a  qi  il  doit  foi  &  obedience,  &  tiel 
manere  de  treison  doun  forfeiture  des  escheets  a  chescun  seigneur  de 
son  fee  propre;  &  pur  ceo  qe  plusours  aulres  cas  de  semblable  trei- 
son purront  eschaier  en  temps  avenir,  queux  home  ne  purra  penser 
ne  declarer  en  present,  assentu  est  qe  qui  autre  cas  suppose  treison, 
qe  ilest  especifietz  peramont,aviegne  de  novel  deuant  ascuns  justices, 
demoerge  la  justice  sanz  aler  a  juggement  de  treison,  tantque  per  de- 
vant nostre  seigneur  le  roy  &  son  parlement  soit  le  case  monstre,  & 


HISTORIA  PLACITORUM  CORON.E.  88 

declare,  le  quel  ceo  doit  estre  ajiigge  treson,  ou  aiit'  felonie  ;  &  si  par 
cas  ascun  home  de  cest  royalme  chivache  armee  descovert,ou  secret- 
ment  ad  geiitz  armez  coiitre  ascun  autre  pur  lui  tuer  ou  desrobber, 
ou  pur  lui  preudre  &  retener  tanque  i I  face  fyu  ou  raunceon  pur  sa 
deliverance  avoir,  nest  pas  lentent  du  roy  &  du  son  counseil,  qe  en 
tiel  cas  soit  ajugge  treison,  eiriz  soit  ajugee  felonie,  ou  trespass  solonc 
la  ley  de  la  terre  auncienement  usee,  &  solonc  ceo  que  le  cas  demand: 
Et  si  en  tiel  cas,  ou  autre  semblable  devant  ces  heures  ascun 
justice  eit  ajugge  treison,  &  par  ycelle  cause  les  terres  &  tene-  [  89  ] 
menfz  devenuz  en  la  maiue  nostre  seigneur  le  roi  come  for- 
faitz  eient  les  cheifes  seignours  de  fee  lour  escheets  des  tenementz  de 
eux  tenuz,  le  quel  qe  les  tenementz  soient  en  la  maine  le  roi  ou  en 
main  dauters  par  doun,  ou  en  autre  manere :  savant  toutes  foits  a 
nostre  seigneur  le  roi  Ian,  &  le  wast,  &  auters  forfeitu resides  chatelx, 
qe  a  lui  attient  en  les  cas  susnomez,  &  qe  briefs  de  scire  facias  vers 
les  terre-tenants  soient  grantez  en  tiel  cas  sanz  autre  original  &  sanz 
alouer  la  protection  nostre  seigneur  le  roi  en  la  dite  suyte ;  &  de  les 
terres,  qe  sont  in  la  maine  le  roi,  soient  grantes  briefs  as  viscontz  des 
countees  la,  ou  les  terres  serront,  de  ouster  la  maine  sanz  autre  delaie." 
The  statute  itself  is  drawn  up  upon  this  petition  and  answer,  and 
differs  nothing  in  substance  from  the  answer  to  the  petition  upon  the 
parliament-roll :  the  statute  itself  runs  in  these  words  :  "  Item,  where- 
as divers  opinions  have  been  before  this  time  in  what  case  treason 
shall  be  said,  and  in  what  not,  the  king  at  the  request  of  the  lords 
and  of  the  commons  hath  made  a  declaration  in  the  manner,  as  here- 
after followeth:  that  is  to  say,  when  a  man  doth  compass  or  ima- 
gine[l]  the  death  of  our  lord  the  king,  or  our  lady  his  queen,  or  of 
their  eldest  son  and  heir;  or  if  a  man  do  violate  the  king's  compa- 
nion, or  the  king's  eldest  daughter  unmarried,  or  the  wife  of  the. 
king's  eldest  son  and  heir;  or  if  a  man  do  levy  war  against  our  lord 
the  king  in  his  realm,  or  be  adherent  to  the  king's  enemies  in  his  realm, 
giving  to  them  aid  and  comfort  in  the  realm  or  elsewhere,  and  thereof 
be  provably(a)  attainted  of  open  deed  by  the  people  of  their  condi- 
tion; and  if  a  man  counterfeit  the  king's  great  or  privy  seal,  or  his 
money;  and  if  a  man  bring  false  money  into  this  realm  counterfeit  to 
the  money  of  England,  as  the  money  called  Lushburgh,  or  other 
like  to  the  said  money  ot  England,  knowing  the  money  to  be  false, 
to  merchatidize  or  make  payment  in  deceit  of  our  lord  the  king  and 
of  his  people:  and  if  a  man  slay  the  chancellor,  treasurer,  or  the 
king's  justices  of  the  one  bench  or  the  other,  justices  in  eyre,  or  jus- 
tices of  assize,  and  all  other  justices  assigned  to  hear  and 
determine,  being  in  their  places  doing  their  offices.  And  it  [  90  ] 
is  to  be  understood,  that  in  the  cases  above  rehearsed  that 
ought  to  be  judged  treason,  which  extends  to  our  lord  the  king  and 
liis  royal  majesty,  and  of  such  treason  the  forfeiture  of  the  escheats 
pertaineth  to  our  lord  the  king,  as  well  of  the  lands  and  tenements 

■    (a)  See  3  Co.  Inst,  p.  12. 


[1]  See  Luders'  Tracts,  137. 


m  HISTORIA  PLACITORUM  CORON.E. 

holden  of  others,  as  of  himself:  and  moreover  there  is  another  man- 
ner of  treason,  that  is  to  say,  when  a  servant  slayeth  his  master,  or  a 
wife  her  husband,  or  when  a  man  secular,  or  religious,  slayeth  his 
prelate,  to  whom  he  oweth  faith  and  obedience;  and  of  such  treason' 
the  escheats  ought  to  pertain  to  every  lord  of  his  own  fee :  and  be- 
cause that  many  other  like  cases  of  treason  may  happen  in  time  to 
come,  which  a  man  cannot  think  nor  declare  at  this  present  time,  it 
is  accorded,  that  if  any  other  case  supposed  treason,  which  is  not 
above  specified,  doth  happen  before  any  justices,  the  justices  shall 
tarry  without  any  going  to  judgment  of  the  treason,  till  the  cause  be 
shewed  and  declared  before  the  king  and  his  parliament,  whether  it 
ought  to  be  judged  treason,  or  other(6)  felony:  and  if  par  case  any 
man  of  this  realm  ride  armed[2]  covertly,  or  secretly  with  men  of 
arms  against  any  other  to  slay  him,  or  rob  him,  or  take  him,  or 
retain  him,  till  he  hath  made  fine  or  ransom  for  to  have  his  deliver- 
ance, it  is  not  the  mind  of  the  king,  nor  his  council,  that  in  such  case 
it  shall  be  judged  treason,  but  shall  be  judged  felony,  or  trespass  ac- 
cording to  the  laws  of  the  land  of  old  time  used,  and  according  as 
the  case  requireth.  And  if  in  such  case,  or  other  like,  before  this 
time  any  justices  have  judged  treason,  and  for  this  cause  the  lands 
and  tenements  have  come  into  the  king's  hands  as  forfeit,  the  chief 
lords  of  the  fee  shall  have  the  escheats  of  the  tenements  holden  of 
them,  whether  that  the  same  tenements  be  in  the  king's  hands,  or  in 
others  by  gift,  or  in  other  manner;  saving  always  to  our  lord  the 
king  the  year  and  the  wast,  and  the  forfeitures  of  chattels, 
[]  91  ]  which  pertain  to  him  in  the  cases  above-named;  and  that 
'  writs  of  scire  facias  be  granted  in  such  case  against  the 
land-tenants  without  other  original,  and  without  allowing  any  pro- 
tection in  the  said  suit;  and  that  of  the  lands,  which  be  in  the 
king's  hands,  writs  be  granted  to  the  sheriffs  of  the  counties,  where 
the  lands  be,  to  deliver  them  out  of  the  king's  hands  without  de- 
lay."[3] 

The  several  high  treasons  hereby  declared  are  these: 

1.  The  compassing  of  the  death  of  the  king,  queen,  or  prince,  and 
declaring  the  same  by  an  overt -act. 

2.  The  violation  or  carnal  knov/ledge  of  the  king's  consort,  the 
king's  eldest  daughter  unmarried,  or  the  prince's  wife. 

3.  The  levying  of  war  against  the  king. 

4.  The  adhering  to  the  king's  enemies  within  the  land  or  without, 
and  declaring  the  same  by  some  overt-act. 

5.  The  counterfeiting  of  the  great  seal  or  privy  seal. 

6.  The  counterfeiting  of  the  king's  coiti,  or  bringing  counterfeit 
coin  into  this  realm. 

(6)  The  old  transl.ition  seems  here  to  be  preferable,  viz.  else;  for  auV  being  abbreviated 
may  be  cither  autre  or  autrement. 

[2]  Liidcrs,  141. 

[3]  Mr.  Luderf  translation  of  this  statute  is  somewhat  different  from  the  one  here 
given.   I'ract  i.  p.  4. 


IIISTORIA  PLACITORUM  CORONJE.  91 

7.  The  killing  of  the  chancellor,  treasurer,  justices  of  the  one 
bench  or  the  other,  justices  in  eyre,  justices  of  assise,  justices  oi  oyer 
and  terminer  in  their  places  doing  their  offices.[4] 

[4]  By  Art.  3.  Sect.  3.  of  the  Constitution  of  the  United  States,  treason  against  the 
United  Staes  shall  consist  only  in  levying  weur  against  them;  or  adhering  to  their 
enemies,  giving  them  aid  and  comfort.  No  person  shall  be  convicted  of  treason,  unless 
on  the  testimony  of  two  witness  to  the  same  overt  act,  or  confession  in  open  court. 

Congress  shall  have  power  to  declare  the  punishment  of  treason;  but  no  attainder  of 
treason  shall  work  corruption  of  blood,  or  forfeiture,  except  during  the  life  of  the  person 
attainted. 

In  furtherance  of  this  constitutional  provision,  an  Act  of  Confess  was  passed  April 
3{)tk,  1790,.  for  the  punishment  of  certain  crimes  against  the  United  States,  by  which  it 
is  enacted,  "That  if  any  person  or  persons,  owing  allegiance  to  the  United  States  of 
America  shall  levy  war  against  them,  or  shall  adhere  to  their  enemies,  giving  them  aid 
and  comfort  within  the  United  States,  or  elsewhere,  and  shall  be  thereof  convicted,  on 
confession  in  open  Court,  or  on  the  testimony  of  two  witnesses  to  the  same  overt  act  of 
the  treason  whereof  he  or  they  shall  stand  indicted,  such  person  or  persons  shall  be  ad- 
judged guilty  of  treason  against  the  United  Slates,  and  shall  sutfer  death." 

The  other  parts  of  the  Act  of  Congress  with  the  decisions  of  the  federal  Courts,  de- 
claring what  acts  amount  to  the  two  species  of  treason  defined  by  the  Constitution  and 
laws  of  the  United  States,  and  the  cases  that  have  come  within  the  cognizance  of  the 
courts  of  the  different  States,  will  be  given  in  their  proper  places.  It  may,  however,  be 
here  observed,  that  under  the  old  confederation  there  was  no  judicial  power  organized  or 
clothed  with  authority  for  the  trial  and  punishment  of  treason  against  the  United  States. 
It  became  necessary  therefore  to  provide  for  it  under  the  judicial  powers  of  the  several 
States.  But  since  the  framing  of  the  Constitution,  the  jurisdiction  is  exclusively  in  the 
United  States  Courts,  II  Johns.  553.  Many  of  the  States  have  provisions  in  their  Con- 
stitutions respecting  this  crime;  thus:  "Treason  against  the  State  shall  consist  only  in 
levying'  war  against  it;  or  in  adhering  to  its  enemies,  giving  them  aid  and  comfort.  No 
person  shall  be  convicted  of  treason,  unless  on  ths  testimony  of  Iwo  witnesses,  or  on 
confession  in  open  court,"  is  to  be  found  in  the  Constitutions  of  Maine,  Connecticut, 
New  Jersey,  Kentucky,  Indiana,  Louisiana,  Mississippi,  Alabama,  Missouri,  Michigan,  and 
Arkansas.  And  most  of  them  have  enacted  laws,  some  of  which  contain  treasons  un- 
known to  the  Constitution  of  the   United  States, 

It  has  been  doubted  by  several  learned  gentlemen  whether,  since  the  making  of  the 
Constitution  of  the  United  Stales,  treason  can  in  any  case  be  committed  against  a  State. 
Mr.  Livingston,  in  his  System  of  Penal  Laws,  p.  148,  says  that,  "  from  the  nature  of  the 
federal  union,  a  levy  of  war  against  one  member  of  the  Union  is  a  levy  of  war  against  the 
whole;  therefore  it  is  concluded  that  treason  against  the  State,  being  treason  against  the 
United  Slates,  it  is  to  be  punished  under  their  laws  and  in  their  courts."  See  also  p.  380. 
A  writer  in  the  American  Law  Magazine,  vol.  4,  p.  318,  argues  in  the  same  manner; 
and  Mr.  Justice  Story  says,  that  a  State  cannot  take  cognizance,  or  punish  the  offence, 
(treason  against  the  United  States,)  whatever  it  may  do  in  relation  to  the  offence  of  trea- 
son committed  exclusively  against  itself,  if,  indeed,  any  case  can,  under  the  Constitution, 
exist,  which  is  not  at  the  same  time  treason  against  the  United  States.  Const.  3  vol.  p. 
173;  but  in  his  charge  to  the  Grand  Jury,  {June  15,  1842,)  he  speaks  thus,  "  Treason 
may  be,  and  often  is,  aimed  altogether  against  the  sovereignty  of  a  partieu'ar  State. 
Thus,  for  example,  if  the  object  of  an  assembly  of  persons,  met  with  force  to  overturn  the 
government  or  constitution  of  a  State;  or  to  prevent  the  due  exercise  of  its  sovereign 
powers,  or  to  resist  the  execution  of  any  one  or  more  of  its  general  laws;  but  without 
any  intention  whatsoever  to  intermeddle  with  the  relations  of  that  State  with  the  national 
government,  or  to  displace  the  national  laws  or  sovereignty  therein,  every  overt  act  done 
with  force  towards  the  execution  of  such  a  treasonable  purpose,  is  treason  against  the 
Slate,  and  against  the  State  only."  1  Story's  Rep.  616.  That  this  offence  may  be  com- 
milted  against  a  State,  seems  to  be  recognized  by  the  second  section  of  article  four  of  the 
Constitution  of  the  United  Slates,  which  provides  that,  "a  person  charged  in  any  State 
with  treason,  &.C.,  who  shall  flee  from  justice  and  be  found  in  another  State,  shall,  on 
demand  of  the  executive  authority  of  the  State  from  which  he  fled,  be  delivered  up,  to  be 
removed  to  the  State  having  jurisdiction  of  the  crime;"  it  was  assumed  in  the  case  of 
The  People  v.  Lynch,  U  Johns.  54'J,  where  the  court  said,  "  that  it  might  be  by  an  open 
and  armed  opposition  to  the  laws  of  the  State,  or  a  combination  and  forcible  attempt  to 


91  HISTORIA  PLACITORUM  CORON.E. 

overturn  or  usurp  the  government.  And,  indeed,  the  State  in  Its  political  capacity,  may, 
under  certain  special  circumstances  pointed  out  by  ttie  Constitution  of  the  United  Slates, 
be  engag'ed  in  war  with  a  foreign  enemy;"  and  it  was  directly  decided,  after  argument, 
in  Dorr's  case,  Pamph.  p.  123.  See  also  4  Tucker's  Bl.  Com.  Apdx.  21.  Serg.  on  Const. 
382.    Rawle  on  Const.  305. 


CHAPTER  XIII. 

TOUCHING    HIGH  TREASON    IN  COMPASSING    THE  DEATH  OF  THE    KING, 
QUEEN,  OR  PRINCE. 

The  first  article  of  high  treason  declared  by  the  statute  of  25  E. 
3.  is  this,  and  in  these  words: 

^^  fV/ien  a  man  doth  compass  or  imagine  the  death  of  our  lord 
the  king,  or  of  our  lady  the  queen,  or  of  their  eldest  son 
[  92  ]  and  heir." 

Upon  this  division  there  will  be  these  considerations. 

I.  What  shall  be  said  a  man  that  compasseth. 

II.  What  shall  be  said  the  king,  queen,  or  their  eldest  son. 

III.  What  shall  be  said  a  compassing  or  imagining  of  any  of 
their  deaths. 

IV.  Wliat  shall  be  evidence,  or  an  overt-act  to  prove  such  ima- 
gining.. 

V.  The  form  of  an  indictment  of  compassing  the  death  of  the 
king,  queen,  or  prince. 

I.  What  shall  be  said  a  man  compassing,  S,'C. 

The  general  learning  of  this  point  in  relation  to  natural,  accidental, 
or  civil  incapacities  hath  been  at  large  handled  in  the  former  chap- 
ters; but  there  is  something  peculiar  to  the  case  of  high  treason, 
which  is  considerable  in  this  division. 

If  an  alien  amy  comes  into  England,  and  here  compass  the  death 
of  the  king,  queen,  or  prince,  this  is  a  man  compassing  within  this 
law;  for,  tlio  he  be  the  natural  subject  of  another  prince,  yet  during 
his  residence  here  he  owes  a  local  alligeance  to  the  king  o[ England, 
and  tho  the  indictment  shall  not  style  hiiti  natnralis  subditiis,  nor 
style  the  king  naturalem  dominuni,  yet  it  shall  run  prodilorie  <5' 
contra  ligeantise  sute  dehituni.  Co.  P.  C.  p.  5.  7  Hep.  Calvin^s 
ccise.{a)  Dyer.  144.  • 

If  an  alien  amy  subject  of  another  prince  comes  into  this  kingdom 
and  here  settles  his  abode,  and  afterwards  war  is  proclaimed  between 
the  two  kings,  and  yet  the  alien  contiimes  here  and  takes  the  benefit 
of  the  king's  laws  and  protection,  and  yet  compasses  the  death  of 
the  king,  this  is  a  man  compassing  within  this  law;  for,  tho  he  be 
the  natural  subject  of  another  prince,  lie  shall  be  dealt  with  as  an 
English  subject  in  this  case,  unless  he  first  openly  remove  himself 
from  the  king's  protection  bypassing  to  the  other  prince,  or  byapub- 

(a)  fol.  6,  17. 


HISTORIA  PLACITORUM  CORONA.  92 

lie  renunciation  of  the  king  of  England^s  protection,  which  hath 
some  analogy  with  that,  which  they  call  diffidatio,  or  defiance. 

And  the  same  law  I  take  to  be,  if  the  subject  of  a  forein 
prince  in  war  with  ours  come  into  England  and  here  trade  [  93  1 
and  inhabit  either  as  a  merchant,  dweller,  or  sojourner,  if 
such  a  person  compass  the  death  of  the  king,  he  may  be  dealt  with 
as  a  traitor,  because  he  comes  not  hither  as  an  enemy,  or  by  way  of 
hostility,  but  partakes  of  the  king's  protection:  with  this  agrees  the 
case  oi  Stephano  Farrara  de  Gama,  and  Emanuel  Lewes  Tinoco, 
Portugueze  born,  and  then  subjects  to  the  king  of  Spain,  between 
whom  and  the  queen  of  England  there  was  then  open  war,  who 
were  indicted  and  attaint  of  high  treason  for  conspiring  with  Dr.  Lo- 
pez to  poison  the  queen. (6)  37  Eliz.  Calvin's  case.  7  Co.  Rep.  p.  6. 

And,  though  they  came  hither  with  the  queen's  protection,  it  alters 
not  the  case,  for  every  foreigner  living  publicly  and  trading  here  is 
under  the  king's  protection :  and  this  appears  by  the  statute  of  Magna 
Charta,  cap.  30.  "  Et  si  sint  de  terra  contra  nos  guerrina,  &. tales  in- 
veniantur  in  terra  nostra  in  principio  guerraB,attachientur  sine  damno 
corporum  suorum  vel  rerum,  donee  sciatur  a  nobis  vel  a  capitali  jus- 
tieiario  nostro,  quomodo  mercatores  terras  nostras  tractentur,  qui 
tunc  inveniantur  in  terra  ilia  contra  nos  guerria;  &  si  nostri  salvi  sint 
ibi,  alii  salvi  sint  in  terra  nostra." 

The  statute  speaks  indeed  of  mercatores,  but  under  that  name  all 
foreigners  living  or  trading  here  are  comprised. 

And  therefore  in  ancient  times  before  the  subjects  of  forein  princes 
in  hostility  residing  here  were  dealt  with  as  enemies,  a  proclamation 
issued  for  their  avoidance  out  of  the  kingdom;  and  in  default  of  their 
avoidance  within  the  time  limited  by  such  proclamation  they  lost  the 
benefit  of  the  king's  protection. 

And  after  such  proclamation,  yet  upon  caution  given  sometimes 
by  mainprise  de  se  bene  gerendo,  sometimes  by  oaths  of  fidelity  to 
the  king,  they  had  sometimes  special,  and  oftentimes  general  protec- 
tions, notwithstanding  such  hostility.  Rot.  Vascon.  18  E.  2.  21,  24. 
Pat.  \4  H.  6.  part.  2.  m.  34,  35. 

The  statute  of  the  Staple,{c)  cap.  17.  hath  made  provision  for  mer- 
chants strangers,  in  case  war  shall  happen  between  their  prince  and 
the  king  of  England,  viz.  that  they  shall  have  convenient  ■ 
warning  by  forty  days  by  proclamation  to  avoid  the  realm;  [  94  1 
and  if  they  cannot  do  it  by  that  time  by  reason  of  some  acci- 
dent, they  shall  have  forty  days  more,  and  in  the  mean  time  liberty 
to  sell  their  merchandizes:  during  these  eighty  days  they  have  the 
king'sprotection,  andif  they  do  any  treasonable  act  above-mentioned, 
they  shall  be  indicted  of  treason,  notwithstanding  the  hostility  be- 
tween their  sovereign  and  the  king  oi  England;  but  it  seems,  that  if 
he  remain  here  in  a  way  of  trade  after  proclamation  so  made,  and 
the  time  of  his  demurrage  allowed  by  this  act,  he  may  be  dealt  with 
as  an  alien  enemy;  but  yet  if  he  after  that  time  continues  in  his  way 

(6)    Vide  Camdeni  Eliz.  sub  anno  1594.  (c)  27  E.  3. 


94  HISTORIA  PLACITORUM  CORONA. 

of  trade  or  living  as  before,  and  shall  then  conspire  the  king's  death,' 
&c.  the  king  may  deal  with  him  as  an  alien  enemy  by  the  law  of 
nations,  or  as  a  traitor  by  the  law  of  the  land;  because  de  facto  he 
continues  as  a  subject,  and  under  the  benefit  de  facto  of  the  king's 
protection. 

Therefore  the  general  words  in  Co.  P.  C.  p.  5.  wherein  he 
supposeth  an  alien  enemy  cannot  be  guilty  of  treason,  but  must  be 
dealt  with  by  martial  law,  are  to  be  taken  with  that  allay,  that  is 
given  in  Calciii's  case,  foL  6.  b.  in  these  words :  "  But  if  an  alien 
enemy  come  to  invade  this  realm, and  be  taken  in  war,  he  cannot  be 
indicted  of  treason,  for  the  indictment  cannot  conclude  co;i/?'a  ligean- 
iiae  suse  dehitum-P  the  like  may  be  said  of  such  as  are  sent  over 
merely  as  spies  by  a  foreign  prince  in  hostility ;  but  an  alien  enemy 
living  here  in  the  condition  of  an  inhabitant  or  trader  may  be  guilty  of 
treason  as  well  as  an  alien  amy,  for  he  doth  it  praditoriedin&  treacher- 
ously, and  against  the  obligation  that  lies  upon  him,  as  well  as  any 
others,  to  be  true  to  the  prince,  the  benefit  of  whose  laws  and  protec- 
tion he  holds,  so  long  as  he  is  under  the  same.[l] 

But  yet  this  is  observable  upon  the  statute  of  Magna  Charta,  cap. 
30.  and  what  hath  been  before  said,  1.  That  if  an  alien  enemy  comes 
into  England a.{{ex  the  war  begun,  and  lives  here  under  the  king's  pro- 
tection as  a  subject,  yet  if  he  practise  treason  against  the  king  during 
such  his  abode  hefe,  he  may  be  indicted  of  high  treason  contra  ligean- 
tias  sux  de.hitum.  2.  Yet  such  an  alien,  coming  in  after  the  war 
begun  without  the  king's  licence  or  safe-conduct,  cannot 
[[  95  ]  claim  the  privilege  allowed  by  the  statute  of  7V/a^;irt  CAar/fl?, 
cap.  30.  to  those  that  were  here  before  the  beginning  of  the 
war.  2  Co.  Inst.  58.  3.  That  by  the  law  of  England  debts  and 
goods  found  in  this  realm  belonging  to  alien  enemies  belong  to  the 
king,  and  may  be  seized  by  him.  19  E.  4.  6.  7  E.  4.  13.  and  there- 
fore in  debt  brought  by  an  alien  enemy  it  is  a  good  plea  in  bar  prima 
facie,  that  the  person  is  an  alien  born  m  G.  in  partibus  transmarinis 
sub  obedientid  Phillippi  regis  Hispaniae  hostis  Sf'  inirnici  domini 
regis;  so  that,  though  to  some  purposes  he  is  under  the  king's  pro- 
tection, so  as  to  be  guilty  of  treason,  if  he  conspire  against  the  king's  • 
life,  yet  his  goods  are  not  by  law  privileged  from  confiscation  ;  and 
the  reason  is,  because  he  might  secure  his  goods  by  purchase  of  let- 
ters patents  of  denization,  and  he  shall  not  take  away  the  king's 
rights  by  his  neglect  therein. 

But  then,  what  if  in  truth  our  merchants  have  liberty  of  reclaiming 
their  goods  and  recovering  their  debts  in  the  hostile  country  ?  May 
the  merchant  plaintiif  reply  with  this  clause  of  the  statute  oi  Magna 
Charta,  that  "  Nostri  mercatores  salvi  sunt  ibi,  &c.  ?" 

I  answer,  he  cannot,  for  it  is  reserved  to  another  kind  of  trial ;  for 
the  words  are  "donee  sciatur  a  nobis  vcl  a  capitali  justiciario  nostro, 
quomodo  mercatores  nostri  ibi  tractentur."  The  king  must  be  as- 
certained of  the  truth  of  the  fact,  in  whose  cognizance  it  best  lies; 

[1]  See  De  la  Motte'a  case,  21  St.  Tr.  (by  Howell),  687. 


IIISTORIA  PLACITORUM  CORONA.  95 

and  if  he  be  satisfied,  that  our  merchants  are  permitted  to  recover 
their  debts  in  the  hostile  kingdom  without  impediment  or  confiscation, 
this  is  to  be  notified  and  declared  by  some  proclamation,  or  instru- 
ment under  the  great  seal  declaring  the  fact,  and  allowing  them  to 
prosecute  for  their  debts  here ;  and  then,  by  virtue  of  this  statute  or 
public  declaration,  the  merchant  alien  plaintiff,  may  reply  with  this 
special  matter  in  maintenence  of  his  action. [2] 

Here  somewhat  may  be  of  use  to  be  said  -touching  treasons  by 
embassadors   of  foreign   princes,  wherein   altho  sometimes  reason 
of  state  and  the  common  interest  of  princes  do  de  facto  govern  in 
these  cases,  yet  it  will  not  be  amiss  to  consider  the  opinions 
and  practices  of  former  times  in  relation  to  this  matter.  [  96  J 

First,  If  an  Englishman  born,  though  he  never  took  the 
oath  of  alligeance,  becomes  a  sworn  subject  to  a  foreign  prince,  and 
is  employed  by  him  into  England  as  his  minister,  agent,  or  em- 
bassador, and  here  conspires  against  the  king's  life,  he  shall  be  in- 
dicted and  tried  for  treason,  as  another  subject  should  be  ;  and  the 
reason  is,  because  no  man  can  shake  off  his  country  wherein  he  was 
born,  nor  abjure  his  native  soil  or  prince  at  his  pleasure.  This  was 
the  case  of  Dr.  Story,  who  had  sworn  alligeance  to  the  crown  of 
Spain,  and  was  here  condemned  and  executed  for  treason.  Vide 
Camden's  Eliz.  14  Eliz.  p.  168.((/)[3] 

Secondly,  But  if  a  foreigner  being  the  agent,  minister,  or  embas- 
sador of  a  foreign  prince  either  in  amity  or  enmity  with  the  king  of 
England  come  over  with  or  without  the  king's  safe-conduct,  and 
here  conspire  against  the  life  of  the  king,  or  to  raise  rebellion  or  war 
against  him,  some  have  been  of  opinion,  that  he  may  be  indicted  of 
treason;  but  by  the  civilians  he  cannot,  because  he  came  in  as  a 
foreign  embassador  representing  the  person  of  his  prince,  and  there- 
fore is  not  to  be  so  dealt  with  in  such  case,  but  by  the  law  of  nations 
may  be  dealt  with  as  an  enemy,  not  as  a  traitor ;  and  though  he  have 
the  pfotection  and  safe-conduct  of  the  king  of  England,  yet  it  is  imder 
a  special  capacity,  and  for  a  special  end,  namely,  as  a  foreign  agent ; 
but  if  he  be  criminally  proceeded  against,  it  must  be  as  an  enemy  by 
the  law  of  war  or  nations,  and  not  as  a  traitor;  but  how  far  and  in 
what  cases  he  may  be  dealt  with  as  an  enemy, remains  to  be  further 
considered.     Camden\'i  Eliz.  sub  anno  \51\.  p.  \Q4:. 

Thirdly,  therefore  those,  that  are  most  strict  after  the  rights  and 
privileges  of  embassadors,  yet  seem  to  agree,  that  if  he  do  not  only 

{(1)  English  folio. 

[2]  See  ante,  p.  60.  in  notis. 
»■  [3]  It  has  always  been  the  law  of  England,  that  a  natural  born  subject  owes  an  alle- 
giance to  the  crown,  which  is  intrinsic  and  perpetual,  and  whic!)  cannot  be  divested  by 
anyactorbisown.  Storie's  case,  Dyer,  228,  b.  1  Bl.  Com.  370;  and  that  no  foreign  letters 
ol  natilralization  can  in  any  manner  take  from  him  his  allegiance,  or  alter  his  duty  to 
his  lawful  sovereign,  Macdnnald's  case,  Fost.  60.  And  yet  the  British  parliament  nnt 
unfreqiiently  passes  acts  of  naturalization,  tiiereby  aiding  a  foreigner  to  shake  off  that 
natural  allegiance  to  his  own  country,  wliich  they  deny  every  other  nation  the  power  to 
do  in  regard  to  British  subjects. 

VOL.  I. 12 


96  HISTORIA  PLACITORUM  CORONA. 

conspire  the  death  of  the  king  or  the  raising  a  rebellion  against  him, 
but  actually  attempt  such  an  act,  as  actually  or  interpretatively  is  a 
consummation  thereof,  though  possibly  the  full  effect  thereof 
r  97  3  ^°  ^^^^  ensue,  yet  he  may  be  dealt  withal  as  an  enemy,  and 
by  the  law  of  nations  he  may  be  put  to  death,  as  if  he 
should  stab  or  poison  the  prince,  and  yet  dotli  not  kill  him,  or  raise 
an  actual  rebellious  army,  or  should  levy  an  actual  war  against  the 
prince  to  whom  he  was  sent,  and  in  that  prince's  country,  as 
Fabius{e)  the  Roriian  embassador  to  the  Gauls,  by  challenging  and 
fighting  with  the  champion  of  the  Gauls ;  Plutarch  in  vita  jYumse, 
the  prince,  to  whom  he  is  sent,  may,  without  consulting  the  prince 
that  sends  him,  inflict  death  upon  such  an  embassador  by  the  law  of 
nations,  as  an  enemy:  "  Consummata  autem  sunt,  quoe  eousque  pro- 
ducta  sunt,  quo  produci  ab  hominibus  solent,  &  quae  delinquendi 
iinem  statuere  solemus.  Vide  Albericus  Gentilis,  Lib.  II.  cap.  2.  de 
legationibus.^^ 

Fourthly,  But  in  case  of  a  bare  conspiracy  against  the  life  of  the 
king,  or  a  conspiracy  of  a  rebellion  or  change  of  government,  no- 
varuni  rerum  molimina,  there  is  great  diversity  of  opinions  among 
learned  men,  how  far  the  privilege  of  an  embassador  exempts  him 
from  penal  prosecution  as  an  enemy  for  such  conspiracies  or  incon- 
summate  attempts,  that  do  not  proceed  farther  than  the  machination, 
solicitation,  or  conspiracy. 

Upon  ah  attempt  of  this  nature  by  the  bishop  of  Rosse,  agent  and 
embassador  of  the  queen  of  Scots,  14  Eliz.  the  question  was  pro- 
pounded to  Lewes,  Dale,  Drury,  Jlubry,  and  Jones,  doctors  of  law, 
viz. 

"Whether  an  embassador,  who  stirreth  up  rebellion  against  the 
prince  to  whom  he  is  sent,  should  enjoy  the  privileges  of  an  em- 
bassador, and  not  be  liable  to  the  punishments  of  an  enemy?" 

They  answered,  that  such  an  embassador  hath  by  the  law  of  na- 
tions, and  by  the  civil  law  of  the  Romans,  forfeited  all  the  privileges 
of  an  embassador,  and  is  liable  to  pimishment.  See  the  rest  of  the 
resolutions  touching  this  matter  Camden^s  Eliz.  sub  anjio  1571.  p. 
164,  165.   <5'  ibidem  p.  370. 

Hereupon  he  was  committed  to  the  Tower,  but  yet  no  criminal 
process  against  him  as  an  enemy. [4] 

(c)  Fahivs  Amhustus. 


[4]  See  Ward's  Hist.  2  vol.  486;  Somers'  Tracts,  1  vol.  186;  4  Inst.  153;  Hawk.  e. 
17.  8.  5  ;  Hah.  211 ;  Salk.  630.  It  was  lield  in  Rex  v.  Owen,  1  Rolle,  185,  that  if  an  am- 
bassador corn|)ass  the  king's  death,  it  is  treason  in  him,  althougli  he  would  not  be  punished 
for  otlier  treasons.  Mr.  Justice  Foster  says,  that  for  murder  and  other  offences  of  great 
enormity,  whieh  are  agait)st  tlie  liglit  of  nature  and  the  fundatneiitai  laws  of  all  society, 
ambassadors  arc  certainly  liable  to  answer  in  the  ordinary  course  of  justice,  as  other 
persons  offendingr  in  the  like  manner  are.  For  tliough  they  may  not  be  thought  to  owe 
allegiance  to  the  sovereign,  and  so  incapable  of  committing  high  treason,  yet  they  are 
to  be  considered  as  members  of  society,  and* consequently  bound  by  that  eternal,  uni- 
versal law  by  which  all  civil  societies  are  united  and  kept  together.  Disc.  1.  s,  7. 
After  stating  the  above  doctrine,  Blackttone  says,  "But  however  these  principles  might 


HISTORIA  PLACITORUM  CORONA.  98 

And  Mendoza,  the  Spanish  embassador,  who  here  in 
Eni^land  fostered  and  encouraged  treason,  was  not  dealt  [  98  ] 
with  according  to  the  utmost  severity,  that  possibly  in  such 
cases  might  be  used,  but^as  only  sent  away,  sub  anno  21  Eliz. 
Camder/s  Eliz.  p.  2dQ.  The  lord  U Jluhespine  also,  the  French 
embassador,  that  conspired  the  queen's  death,  was  not  proceeded 
against  criminally,  but  only  reproved  by  Burghley,  and  advised  to 
be  more  careful  for  the  future.  Camden'' s  Eliz.  sub  anno  15S7.  p. 
378,  379. 

And  upon  these  and  some  antient  instances  among  the  Romans 
and  Carthaginians  learned  men  have  been  of  opinion,  that  an 
embassador  is  not  to  be  punished  as  an  enemy  for  traitorous  con- 
spiracy against  the  prince,  to  whom  he  is  sent,  but  is  only  to  be 
remitted  to  the  prince  that  sent  him.  Albericus  Gentilis  de  Lega- 
iionibus,  Lib.  II.  cap.  18.  Grolins  de  Jure  Belli,  Lib.  II.  cap. 
18.(/)  who   gives  these  two  instances  in  confirmation  thereof. 

The  truth  is,  the  business  of  embassadors  is  rather  managed  ac- 
cording to  rules  of  prudence,  and  mutual  concerns  and  temperaments 
among  princes,  where  possibly  a  severe  construction  of  an  embas- 
sador's actions,  and  prosecutions  of  them  by  one  prince  may  at 
another  time  return  to  the  like  disadvantage  of  his  own  agents  and 
embassadors;  and  therefore  they  are  rather  temperaments  measured 
by  politic  prudence  and  indulgence,  than  according  to  the  strict 
rules  of  reason  and  justice;  for  surely  conspiracies  of  this  kind  by 
embassadors  are  contrary  to  the  trust  of  their  employments,  and 
may  be  destructive  to  the  state  whereunto  they  are  sent,  and  accord- 
ing to  true  measures  of  justice  deserve  to  be  punished,  as  acts  of 
enmity,  hostility,  and  treachery  by  private  persons. 

And  altho  of  all  hands  it  is  admitted,  that  the  prince,  to  wirom 
the  embassador  is  sent,  is  the  judge  of  the  miscarriage  of  such  for- 
eign embassador  without  any  application  to  the  master  from  whom  he 
is  sent,  and  without  any  actual  dedition  or  giving  him  up  to  the  judg- 
ment of  the  law;  yet  they  assign  this  reason  of  the  difference  be- 
tween a  bare  conspiracy  or  machination  against  the  prince,  and  an 

(/)  in  notis  ad  §  4.  n.  5. 

formerly  obtain,  tlie  general  practice  of  this  country,  as  well  as  of  the  rest  of  Europe, 
seems  now  to  pursue  the  sentiments  of  the  learned  Groiius,  that  the  security  of 
ambassadors  is  of  more  importance  than  the  punishment  of  a  particular  crime."  1  Co?n. 
254.  See  Vatd,  ZJ.  4.  c.  7.  The  Schooner  Exchange  \.  McFaddon,  7  Cranch,  }38,  and 
1  Kent's  Cum.  37.  38,  where  the  learned  author  comes  to  the  contilusion  that  an  ambas- 
sador cannot,  in  any  case,  be  made  amenable  to  the  civil  or  criminal  jurisdiction  of  the 
country  to  wliich  lie  is  sent.  The  Act  of  Congress  of  the  30th  April,  1790,  declares 
{srcts.  25.  Sf  26.)  void  any  writ  or  proces.s,  whereby  the  person  of  any  ambassador,  or 
oilier  public  minister,  their  domestic  or  domestic  servants,  may  be  arrested  or  im- 
prisoned, or  his  or  their  goods  or  chattels  may  be  distrained,  seized  or  attached ;  and 
subjects  the  parties  concerned  to  fine  and  imprisonment.  This  Act  seems  to  take  away 
ail  process  of  execation,  civil  as  well  as  criminal,  against  the  person  or  goods.  Serg.  oa 
Cons.  90. 

But  if  a  foreign  minister  commits  the  first  assault  he  forfeits  his  immunity,  so  far 
as  to  excuse  the  defendant  for  returning  it.     U.  S.  v.  Ortega,  11  Wteal.  467. 


98  HISTORIA  PLACITORUM  CORON,^. 

actual  attempt  of  treason,  whether  against  his  person  or 
[  99  ]]  government,  which  hath  attained  as  great  a  consumma- 
tion as  such  embassador  is  able  to  effect,  as  procuring 
the  wounding  of  the  prince,  or  an  actual  attempt  to  poison  him, 
tho  death  ensue  not,  or  an  actual  raising  of  a  rebellious  army 
against  him;  because  in  these  latter  the  mischief  is  consummate,  as 
far  as  the  embassador  could  effect  it,  and  so  prohibited  not  only  by 
the  civil  and  municipal  laws,  but  by  tlie  laws  of  nations;  but  incon- 
sumnjate  machinations,  according  to  their  opinions,  are  raised  to  the 
crimen  Ixsx  majestatis  by  civil  or  municipal  laws  or  constitutions; 
and  they  think  it  too  hard,  that  an  embassador  or  foreign  agent, 
who  doth  sustinere  personayn  principis,  should  be  obnoxious  to  a 
capital  punishment  for  bare  machination  or  conspiracy,  which  is  a, 
secret  thing  and  of  great  latitude;  but  this,  as  I  have  said,  is  rather 
a  prudential  and  politic  consideration,  and  not  according  to  the  strict 
measure  of  justice. 

But  now,  altho  it  should  be  admitted  that  a  foreign  embassa- 
dor committing  a  consummate  treason  is  not  to  be  proceeded  againsJ^ 
as  a  traitor,  but  as  an  enemy;  yet  if  he  or  his  associates  commit  any 
other  capital  offence,  as  rape,  murder,  theft,  they  may  be  indicted 
and  proceeded  against  by  indictment  in  an  ordinary  course  of  justice, 
as  other  aliens  committing  like  offences  ;  for  though  those  indictments 
run  contra paceyn  regis,  yet  they  run  not  contra  ligeantise  siias  del)i- 
tiim;  and  therefore,  when  in  the  late  troubles  the  brother  and  ser- 
vants of  the  Portugal  embassador  committed  a  murder  in  the  Ex- 
change,{g)  they  were  tried  and  convicted  by  a  special  commission  of 
oyer  and  terminer  directed  to  two  judges  of  the  common  law,  some 
civilians,  and  some  gentlemen,  to  proceed  according  to  the  ordinary 
course,  secundum,  legem  (§'  consuetudinem  regni  Angliae,  whereupon 
some  of  them  were  convict  by  jury,  and  had  judgment ;  and,  as  I  re- 
member, some  of  them  were  executed.(A)  And  yet  many 
[  100  ]  civilians(/)  allow  the  same  privilege  to  the  comites  legati,  as 
to  the  embassador  himself. 
And  the  difference  between  proceeding  against  an  alien  (whether 
embassador  or  other)  in  cases  of  felony  and  treason,  is  well  illustrated 
by  the  book  of  40  ^ss.  25,  where  a  Norman  captain  of  a  ship  with 
the  help  of  English  mariners  committed  robbery  and  piracy  upon  the 
narrow  seas ;  the  English  pirates  were  convict  and  attaint  of  trea- 
son,(>^)  but  the  Norman  captain  was  attaint  of  felony,  but  not  of  trea- 
son, because  it  could  not  be  said  contra  ligeantix  sux  debitum. 

(ff)  The  New  Exchange  in  llie  Strand. 

(h)  Don  Panlah'.on  Sa,  tlie  embassador's  brother,  was  condemned  to  die  for  it:  he  had 
like  to  have  prevented  iiis  execution  by  makin£f  iiis  escape  out  of  Newgate;  but  he  was 
retaken,  and  belieaded  on  Towerhill,  July  10,  1G54,  tiic  same  day  tlie  embassador  signed 
the  peace  between  England  and  Portugal. 

(i)  Dig.  Lib,  XLVIII.  tit.  G.  ad  leg.  Jul.  de  vi  puhlica.  I.  7.  Grot,  de  jur.  Belli,  Lib.  II. 
cap.  18.  §  8.  .  . 

(k)  For  before  the  25  E.  3.  piracy  was  petit  treason.  Co.  P.  C.  113.  and  tho' tijis 
case  be  quoted  in  the  40  E.  3.  yet  it  must  be  intended  to  have  happened  before  the  sta- 
tute of  2.5  Ed.  3.  because  piracy,  not  bcin<r  enumerated  therein  among  the  species  of 
treason,  has  never  been  counted  treason  since  that  statute.    Co.  /*.  C,  8. 


HISTORIA  PLACITORUM  CORONA.  ]00 

The  queen  consort  the  wife  of  the  king,  or  the  husband  of  the 
queen  regent,  compassing  the  death  of  the  king  her  husband  or  the 
queen  recent  his  wife,  are  persons  compassing  within  this  act.  Co. 
P.  C.  p.  8. 

If.  As  to  the  second  inquiry,  what  shall  be  said  a  king,  queen,  or 
Iheir  eldeat  son,  within  this  law, 

1.  The  words  our  lord  the  king,  S,-c.,  extend  to  his  successor,  as 
well  as  to  him.(/) 

1.  Because  it  is  a  declarative  law. 

2.  Because  usually  acts  of  parliament  speaking  thus  generally,  and 
not  confining  it  to  the  person  of  that  king,  when  the  law  passed,  in- 
clude his  successor;  therefore  the  statute  of  8  H.  6.  cap.  11,  23  Hen. 
S.  for  Brewers.  27  H.  8.  cap.  24,  that  were  limited  to  continue  during 
the  pleasure  of  our  lord  the  king,(m)  continued  after  that  king's 
death:  Mich.  38  <§•  39  Eliz.  Cro.  Eliz.  513.  Lord  Darcie's  case. 
The  statute  of  11  //.  7.  c.  1,  of  aiding  our  lord  the  king  in  his  wars, 
extends  to  the  successor.(?i)     Hill.  10  Jac.  12  Co.  Rep.  109. 

M.  24  Eliz.  Moore  176.  Coke  Litt.  9.  b.{o)  But  the  statute  [  101  ] 
of  34  ^  35  H.  8.  cap.  26,  giving  power  to  our  said  lord  the 
king  to  alter  the  laws  of  Wales,  died  with  him;(/>)  yet  in  majorem 
cautelam  it  was  specially  repealed  by  the  statute  of  21  Jac.  cap.  10. 
2,  The  heir  of  the  king  is  a  king  within  this  act  the  next  moment 
after  the  death  of  his  ancestor,  and  commenceth  his  reign  the  same 
day  the  ancestor  dies;  and  therefore  tlie  compassing  his  death  before 
coronation,  yea  before  proclamation  of  him,  is  a  compassing  of  the 
king's  death,  for  he  is  a  king  presently  upon  the  ancestor's  death; 
and  the  proclamation  or  coronation  are  but  honorable  ceremonies(5') 

(Z)   Vide  Co.  P.  C.  p.  6, 

(w)  Of  these  statutes  the  first  only  is  so  limited;  but  the  23  H.  8,  cap.  4.  sect.  5,  14. 
and  27  Hen.  S.  cap.  24.  sect.  10.  only  name  the  king-  without  the  addition  of  his  heirs  and 
successors.  10  H.  7.  7.  b.  it  is  said  by  Kcble  with  relation  to  9.  H.  G.  cop.  2.  and  not  denied 
by  the  court,  that  where  a  statute  limits  to  continue  so  long  as  it  shall  please  our  lord 
the  king,  it  continues  in  force,  if  no  proclamation  be  made  to  the  contrary  in  the  times 
of  that  king  or  of  any  of  his  successors. 

(n)  This  statute  comes  not  up  to  the  point,  because  the  words  of  it  are  not,  our  lord 
the  king,  but  the  king  and  sovereign  lord  of  this  land  for  the  time  being.  Our  author 
seems  to  have  intended  the  Irish  statute  of  10  H.  7.  called  Poijning^s  act,  upon  which 
act  a  doubt  was  conceived,  whether  it  extended  to  the  successors  of  H.  7.  for  that  the  act 
speaks  only  of  the  kin;^  generally,  and  not  of  his  successors;  the  chief  justices,  chief 
baron,  attorney  and  solicitor  general  were  of  opinion,  that  the  word  king  imported  his 
politic  capacity,  which  never  dies;  and  therefore  being  spoke  indefinitely,  extended  in 
law  to  all  his  successors,  and  was  so  expounded  by  an  Irish  act  in  the  3  «.V  4  Fhil.  &■  Mar. 
12.Co.Rep.H)9.  i  J  i  i 

(o)  The  case  in  Moore  relates  to  statutes  during  the  pleasure  of  the  king:  the  words 
are,  "  Wahnesley  moved  a  question,  whether  the  demise  of  the  king  determines  a  statute 
limited  to  continue  during  the  king's  pleasure,  and  the  whole  court  agreed  that  the  de- 
mise  of  the  king  determines  his  will." 

(p)  The  words  of  that  statute,  §  119.  are,  "That  the  king's  most  royal  majesty  shall 
and  may,  &,c.  as  to  his  most  excellent  wisdom  and  discretion  shall  be  thouglit  conveni- 
cnt;  and  also  to  make  laws,  .Slc.  at  his  majesty's  pleasure."  It  was  resolved  by  the 
justices,  nil.  5  Jac.  12  Co.  Rep.  48.  that  this  was  a  temporary  power,  and  confined  to 
the  person  of  king  //cnry  VIII.    Vide  Plowden,  176.  b.  &;c.  458.  a. 

iq)  The  coronation  is  something  more  than  only  an  honourable  ceremony,  for  it  is  a 
Bolenin  engagement  to  govern  according   to  law,  which  was   always  required  by  the 


101  HISTORIA  PLACITORUM  CORONA. 

for  the  farther  notification  thereof:  resolved  1  Jac.  in  the  case  of 
Watson  and  Clerk.  Co.  P.  C.  p.  7. 

3.  Tlie  queen  regent,  as  were  queen  Mary  and  queen  EUzabethj 
is  a  king  within  this  act.(r)[5] 

4.  A  iiing  de  facto  but  not  de  Jiire,{s)  such  as  were  H.  4.  H.  5. 

ancient  constitution  of  the  iiingdom.  Brompton  speaking  of  the  coronation  of  W.  I.  says, 
the  archbishop  of  York  performed  the  office.  Ipsumque  Gulielmum  regem  ad  jura  eccle. 
sice  AnglicanoB  luenda  Sf  conservanda,  populumque  suum  rede  regendum,  Sf  le'/es  rectus 
statuendum  sacrumento  solemniter  adstrinxit;  and  Brad.  Lib.  111.  cap.  9.  says,  that  the 
king  of^  England  debet  in  coronations  sua  in  no?nine  Jesu  Ckristi  pnestito  Sacramento 
h(EC  tria  promittere  populo  sibi  subdito,  Sfc,     See  also  1.  W.  S(  M.  cap.  6. 

(r)  Vide  Co.  P.  C.  p.  7.  This  appears  by  the  declarative  law  in  favour  of  queen 
Mar II,  1  Mar.  cap.  1  sess.  3. 

(s)  This  distinction,  which  with  respect  to  the  kingly  office  was  never  known  \n  our 
law  before  the  statute  of  1  E.  4.  seems  to  have  been  purposely  invented  to  serve  the  turn 
of  the  house  of  York;  nor  do  I  find  any  such  distinction  ever  mentioned  or  supposed  in 
any  of  our  ancient  law-books,  save  only  in  BagoVs  case,  9  E.  4.  \.b.  cited  by  our  author, 
p.  61.  for  the  doubt  conceived  by  Markham,  4  E.  4.  43.  a,  concerning  the  authority  of 
coroners  chosen  in  the  time  of  H.  6.  was  not  founded  (as  some  have  supposed)  on  H.  6. 
being  only  king  de  facto,  but  on  another  point,  viz.  whether  the  demise  of  the  crown  did 
not  determine  the  power  of  coroners,  as  it  does  the  commissions  of  judges  and  other  com- 
missioners; and  as  to  BagoVs  case,  if  carefully  considered,  it  will  but  little  serve  the 
purpose  of  such  a  distinction,  for  the  principal  point  in  that  case  was  concerning  the 
validity  of  letters  patent  of  denization  granted  to  Bagot  by  H.  6.  whether  they  were  void 
by  the  act  of  1  E.  4.  set  forth  in  the  pleadings;  this  point  was  not  argued  by  the  judges, 
but  by  the  searjeants  and  apprentices,  9  E.  4.  2.  a.  ii;  will  therefore  be  necessary  to  dis- 
tinguish the  discourse  of  the  counsel  from  the  resolution  of  the  court. 

BagoVs  counsel  asserted,  "That  all  judicial  acts  relating  to  royal  jurisdiction,  which 
were  not  in  diminution  of  the'  crown,  though  done  by  an  usurper,  would  nevertheless 
bind  the  king  de  jure  upon  his  regress,  that  H.  6.  was  not  merely  an  usurper,  the  crown 
having  been  entailed  on  him  by  parliament,  that  BagoVs  denization  was  an  advantage  to 
the  prince  on  tiie  throne,  for  tlie  more  subjects  he  had,  the  better  it  was  for  him ;  and 
they  likened  it  to  the  case  of  recoveries  suffered  in  a  court-baron,  while  the  disseisor  was 
in  possession,  which  would  continue  in  force  notwithstanding  the  re-entry  of  the  dis- 
eeisee." 

This  was  all  that  could  be  expected  for  them  to  say,  considering  tliat  E.  4.  was  then 
on  the  throne,  and  they  were  obliged  to  admit,  that  grants  of  the  regal  revenue  made  by 
H.  6.  were  void  against  E.  4.  because  tiie  act  of  parliament  of  E.  4.  which  declared  H.  4. 
H.  5.  and  H.  6.  usurpers,  vested  in  E.  4.  all  such  manors,  castles,  honours,  liberties,  fran. 
chises,  reversions,  remainders,  &c.  and  all  hereditaments  with  their  appurtenances,  whatso. 
ever  they  icere,  in  England,  Wales,  and  Ireland,  arid  in  Calais,  as  king  Richard  //.  hud 
on  the  feast  of  St.  Matthew  the  twenty-third  year  of  his  reign  in  right  of  the  crown  of 
England  and  lordship  o/ Ireland:  all  mesne  grants  therefore  of  such  manors,  Sfc.  were 
by  this  act  indisputably  defeated. 

l^he  counsel  on  the  other  side  objected,  *'  That  the  letters  patent  of  denization  were 
void,  for  that  the  king  ought  not  to  be  in  a  worse  condition  than  a  common  person;  and 
that  if  a  common  person  were  disseised  and  re-entered,  his  re-entry  would  defeat  all 
mesne  acts;  and  that  therefore  E.  4.  being  in  by  descent  from  king  Richard,  and  this  act 
being  but  an  affirmance  of  the  common  law,  his  regress  would  avoid  ail  acts  done  by  the 
usurper,  for  wliicii  reason  provision  was  made  in  that  act  for  grants  of  wards,  licenses  of 
mortmains,  charters  of  pardon,  and  judicial  acts,  but  no  provision  was  made  for  grants 
of  denization ;  tiiat  the  patent  in  controversy  was  to  the  disadvantage  of  the  king,  since 
it  was  not  reasonable,  that  such  an  alien  should  be  made  his  subject  against  his  will,  for 
by  the  same  reason  H.  6.  might  have  made  twenty  thousand  Frenchmen  denizens ;  that 
if  a  league  was  made  between  //.  6.  and  another  king,  it  would  not  bind  E.  4.  and  yet 
such  league  is  intended  for  the  advantage  of  the  realm;  that  an  exeniption  granted  by 
//.  G.  from  being  put  ujion  juries  in  assises,  iSpn.  would  now  be  void." 

Here  Billing  the  chief  justice  interposed  and  said,  /  do  not  agree  to  this;  he  added, 
"  It  pertains  to  every  king  by  reason  pf  his  f^ice  to  do  justice  and  grace,  justice  in  execu- 

[5]  R.  V.  Oxford,  9  C.  Sf  P.  525. 


HISTORIA  PLACITORUM  CORONiE.  102 

H.  6.  /?.  3.  H.  7.  being  in  the  actual  possession  of  the  crown  is  a 
king  within  this  act,  so  that  compassing  his  death  is  treason 
within  this  law;  and  therefore  the  4  E.4.20.  a.,{t)  a  person  [  103] 
that  compassed  the  death  of  H.  6.  was  attainted  for  that  trea- 
son in  the  time  of  the  rightful  king;  but  had  it  been  an  act  of  hos- 
tility in  assistance  of  the  rightful  heir  of  the  crown, (*)  which  after- 
wards obtained,  this  had  not  been  treason,  but  e  converso  those  that 
assisted  the  usurper,  though  in  actual  possession  of  the  crown,  have 
sutfered  as  traitors,  as  appears  by  the  statute  of  1  E.  4,(t)  and  as  was 
done  upon  the  assistants  of  H.  G.  after  his  temporary  re-adeption  of 
the  crown  in  10  ^.  4.  and  49  i/.  6. 

5.  A  king  admitting  by  act  of  parliament  his  son  in  consortium 
imperii,  as  was  done  by  H.  2.  whereby  there  was  rex  pater  and  rex 
filius,  only  the  father  reserved  to  iiimself  the  lige  homage  or  allige- 
ance  of  his  subjects,  yet  tlie  son  actually  administered  the  kingdom; 

• 

ting  the  laws,  &c.  and  grace  in  granting  pardon  to  felons,  and  such  legitimation  as  this 
is."  Yelverlon  seemed  at  first  to  think  that  the  denization  was  void,  not  because  the 
regress  of  E.  4.  avoided  all  mesne  acts  done  by  H.  6.  but  because  the  acl  of  1  E.  4.  re- 
sumed all  liberties  and  franchises,  and  denization  being  a  liberty  was  therefore  resumed. 
The  cause  was  adjourned,  during  wiiich  time  it  was  abated  by  the  death  oi Swirenden 
one  of  the  plaintiffs;  a  new  assise  was  brought  by  Bwrot,  and  the  same  matter  was 
pleaded  as  before;  the  assise  was  taken,  and  the  verdict  was  in  fitvour  of  Bagot  9  E.  4. 
5.  the  defendant's  counsel  moved  in  arrest  of  judgment,  and  Brian  (who  was  of  counsel 
against  Ba^ol,  and  not  one  of  the  judges)  repeated  the  former  objection,  that  since  E.  4. 
was  in  possession  by  remitter,  as  cousin  and  fieir  of  king  Richard,  the  patent  of  deniza- 
tion by  H.  6.  who  was  but  an  usurper  and  intruder  was  void,  9  JF.  4.  11.  but  the  justices 
said,  that  they  had  conferred  upon  all  points  of  this  case  with  the  justices  of  tlie  common 
pleas,  and  they  were  all  of  opinion,  that  those  matters  were  not  sufficient  to  arrest  judg- 
ment; and  accordingly  judgment  was  given  for  Bagot  9  E.  4.  12.  a.  abridged  in  Br.  Pa- 
tents 21.  Denizen 'i,  Chartre  de  Pardon  22.  Exemption  4,  Judgment  i2.  F.  Assise  29. 
Denizen  1.  _ 

From  this  state  of  the  case  it  appears,  that  the  question  was  entirely  upon  the  con- 
struction of  an  act  of  parliament,  and  not  upon  any  maxims  of  common  laic;  and  tho 
it  was  said,  that  that  act  was  an  affirmance  of  the  comrn'on  law,  yet  that  was  only  the 
saying  oi  counsel,  and  unsupported  by  any  book-case  or  record:  so  that  the  distinction 
here  taken  by  our  author  between  a  rex  de  facto  and  a  rex  de  jure  being  no  way  war- 
ranted by  the  constitution  or  common  law  of  this  kingdom,  all  that  is  here  said  by  him 
on  that  supposition  must  fall  to  the  ground. 

{()  This  case  is  cited  before  by  our  author,  p.  61.  but  is  somewhat  differently  related 
in  Sloio's  Annals,  p.  418.  Seld.  Titles  of  Honour,  cap.  5.  p.  654. 

(*)  But  who  shall  take  upon  them  to  determine  who  that  is?  Our  author  therefore 
prudently  adds,  which  afterwards  obtained,  for  this  is  the  most  effectual  way  of  deciding 
questions  of  this  nature;  hut  then  by  the  same  rule,  if  he  should  not  obtain,  such  act  of 
hostility  had  been  treason,  for  it  cannot  be  imagined,  that  any  prince  in  the  actual  pos- 
session of  the  government  will  suffer  his  own  title  to  be  disputed,  nor  indeed  is  it  fitting, 
that  private  subjects  should  set  themselves  up  for  judges  in  such  an  affair,  whose  duty  it 
IS  to  pay  a  legal  obedience  to  the  powers  that  are  in  i'act  set  over  them ;  for  the  powers 
that  be,  are  ordained  of  God.  Rom.  xiii.  1. 

This  serves  to  show  how  idle  the  distinction  is  between  a  rex  de  jure  and  a  rex  de 
facto,  which  is  not  only  founded  on  a  precarious  bottom,  but  also  must  in  fact  prove  a 
distinction  without  a  difference,  being  equally  serviceable  to  all  sides  and  parties;  and 
thus  it  was  iu  regard  of  H.  6.  and  E.  4.  who  were  both  of  them  by  turns  declared  by  par- 
liament to  be  rij/hlful  kings  and  usurpers. 

(t)  This  must  have  been  for  acts  before  E.  4.  first  obtained  the  crown,  and  therefore 
was  wrong  according  to  our  author's  own  doctrine,  because,  as  he  says  below,  even  the 
nghtdil  heir  before  he  has  got  possession  of  the  crown  is  not  a  king  within  the  statute 
of  25  £.  3.  -- 


103  HISTORIA  PLACITORUM  CORONiE. 

the  father  continued  a  king,  and  a  treason  committed  against 
[  104  ]  liiiii  by  his  son  or  any  of  iiis  subjects  was  treason  within  this 

act;  and  so  was  the  son  a  king  within  this  act,  as  in. refer- 
ence to  all  but  the  father,  a  subordinate  king,  that  had  the  j.ura 
imperii,  as  the  king  ei  Scots  was  after  his  homage  done  to  king 
Edward  I.  and  therefore  compassing  his  death  by  any  of  his  subjects 
had  been  high  treason  within  this  act,  if  it  had  been  then  made;  for 
it  is  mistaken  in  lord  Coke's  P.  C.  p.  7.  that  H.  2.  resigned  his  crown, 
for  he  continued  still  rex  de  facto  4*  de  jure,  as  Hoveden  tells  us. 
Vide  snpra  cap.  10. 

Having  thus  shewn  who  is  a  kii]g  within  this  act,  we  shall  the 
more  easily  see  who  is  not  a  king  within  this  act. 

1.  The  right  heir  of  the  crown,  during  such  time  as  the  usurper  is 
in  plenary  possession  of  it,  and  no  possession  thereof  in  the  heir,  is 
not  a  king  within  this  act  ;[6]  such  was  the  case  of  the  house  of  York 
during  tlie  plenary  possession  of  the  crown  in  H.  4.  H.  5,  H.  6.  but 
if  the  right  heir  had  once  the  possession  of  the  crown  as  king,  though 
an  usurper  hath  gotten  the  possession  thereof,  yet  the  other  continues 
his  style,  title  and  claim  thereuilto,  and  afterwards  re-obtains  the  full 
possession  thereof,  a  compassing  the  death  of  the  rightful  heir  during 
that  interval,  is  a  compassing  of  the  king's  death  within  this  act,  for 
he  continued  a  king  still,  quasi  in  possession  of  his  kingdom  ;[7]  this 
was  the  case  of  E.  4.  in  that  small  interval,  wherein  H.  6.  re-obtained 
the  crown,  and  the  case  of  E.  5.  notwithstanding  the  usurpation  of 
his  uncle  ^.3. 

2.  If  a  king  voluntarily  resign,  as  some  in  other  countries  have 
done,  and  this  resignation  admitted  and  ratified  in  parliament,  he  is 
not  afterwards  a  king  within  tliis  act;(?/)  but  we  never  had  such  an 
example  in  England,  for  that  of  ^.  2.  was  a  constrained  act,  touch- 
ing which  and  tlie  deposition  of  E.  2.  I  shall  not  say  farther,  for  they 
were  acts  of  great  violence  and  oppression. 

Only  thus  much  is  certain,  that  although  E.  2.  had  a  kind 
£  105]  of  pretended  deposing,  and  his  son  E.  3.  took  upon  him  the 
kingly  name,  and  office,  yet  in  the  opinion  of  those  times  E. 
2.  continued,  as  to  some  purposes,  his  regal  character,  for  in  the  par- 
liament of  4  E.  3.  Mortimer,  Berisford,  Guerney,  and  others  had 
judgment  of  high  treason  given  against  them  for  the  death  of  E.  2. 
after  his  deposition. 

Neither  was  this  judgment  grounded  simply  upon  that  old  opinion 

(m)  Tlie  same  reason  holds  in  tlic  case  of  a  king-,  who  is  deemed  by  parliament  to  have 
abdicated,  or  by  actions  subversive,  of  the  cotisliliition  virtually  to  have  renounced  the 
government;  this  was  the  case  of  king  Jumes  II.  who,  tho  not  in  words,  yet  by  acts 
and  deeds  equally  expressive  had  renounced  liolding  the  crown  upon  the  terms  of  the 
constitution.  .' 

•         .  -.      T     ■■  .  ,,  ,      •    -     •  _ 

[6]  A  king  may  be  kept  out  of  the  exercise  of  the  kingly  office,  (as  Charles  II.  was 
for  twelve  year.s,  Ijy  Croitiiiull,)  and  still  be  a  king,  bntli  de  facto  and  de  jure;  and  all 
acts  done  to  keep  liim  out  are  high  treason.     Sir  Henry  Vane's  case,  Kel.  15.  Fost,  402, 

[7]  This  is  denied  by  Foster,  pp.  Icti.  398. 


HISTORIA  PLACITORUM  CORONA.  105 

in  Bn'/fo}i,{x)  that  killing  of  the  king's  father  was  treason  ;  for, 
though  in  some  parts  of  that  record,  as  in  the  judgment  of  the  lords 
against  Mortimer,  the  words  are,  Touchant  le  mort  seigneur  Ed- 
ward pere  nostre  seigneur  le  ,roy,  qe  ore  est, — countes,  barons,  & 
peres,  come  jugges  de  parlement,  agarderent  &  adjuggerent  le  dit 
Foster,  come  trelor  &  enemy  de  roy  &  de  realme,  feust  treine  & 
pendu;  yet  in  other  parts  of  that  roll  of  parliament  he  is  styled  at 
the  time  of  his  murder  seignior  lige,  and  sometimes  rex,  as  n.  6. 
The  lords  make  their  protestation,  that  they  are  not  to  judge  any  but 
their  peers;  yet  they  declare  that  they  gave  judgment  upon  some 
that  were  not  their  peers,  in  respect  of  the  greatness  of  their  crimes ; 
et  ce  per  encheson  de  murder  de  seigneur  lige,  fyc.  and  in  the 
arraignment  of  Thomas  lord  Berkele  for  that  oifense,  the  words  of 
the  record  are,  Qualiter  se  velit  acquietare  de  morte  ipsius  domine 
regis,  who  pleaded,  Quod  ipse  de  viorle  ipsius  douiini  regis  in 
nullo  est  inde  culpabilis;  and  the  verdict,  as  it  was  given  in  parlia- 
ment, 4  E.  3.  n.  16.  and  the  record  is.  Quod prsedictus  Thomas  iti 
nullo  est  culpabilis  de  m,orte  prsedicti  domini  regis  patris  domini 
regis  nunc ;  so  that  the  record  styles  him  rex  at  the  time  of  his  death, 
and  yet  every  one  acquainted  with  history  knows,  that  his  son  was 
declared  king,  and  took  upon  him  the  kingly  office,  and  title  upon 
the  twenty-fifth,  or,  according  to  IVulsinghani,  the  twentieth  of 
January;  and  E.  2.  was  not  murdered  till  the  twenty-first  oi  Sep- 
tember following. 

I  have  been  the  longer  in  this  instance,  though  it  were  before  the 
making  of  the  statute  of  25  E.  3.  when  treason  was  determined 
according  to  the  common  law,  that  it  may  appear,  that  this 
judgment  was  not  singly  upon  this  account,  that  he  was  f  106  1 
father  to  king  E.  3.  but  that  notwithstanding  the  formal 
deposing  of  him,  and  that  pretended  or  extorted  resignation  of  the 
crown  mentioned  by  the  histories  of  that  age,  yet  they  still  thought 
the  character  regius  remained  upon  him,  and  the  murder  of  him 
was  no  less  than  high  treason,  namely,  the  killing  of  him  who  was 
still  a  king,  though  deprived  of  the  actual  administration  of  his  king- 
dom. 

3.  The  husband  of  a  queen  regent  is  not  a  king  within  this  law, 
for  the  queen  still  holds  her  sovereignty  entirely,  as  if  she  were  sole  : 
vide  1  Mar.  cap.  2.  sess.  3.  and  for  the  remedy  hereof  there  was  a 
special  temporary  act  made  enacting  and  extending  treason  as  well 
to  the  compassing  of  the  death  of  king  Philip  of  Spain  husband  to 
queen  Mary,  as  of  the  queen,  and  for  the  making  of  other  acts  against 
the  king,  as  against  the  queen,  within  the  compass  of  high  treason, 
during  the  continuance  of  the  marriage  between  them.  1  (§•  2  Phil. 
Sf'  Mar.  cap.  10.  so  that  it  seems,  tho  the  husband  of  a  queen 
regent  be  as  near  to  him,  as  the  wife  of  a  king  regnant,  the  statute 
Ot  25  E.  3.  declaring  the  comi)as^ing  of  the  death  of  the  king's  wife 
to  be  treason,  did  not  extend  to  the  husband  of  a  queen  regent. (y) 

(j:)  Brit.  cap.  22.  Co.  P.  C.  p.  7.  (y)  Co.  P.  C.  p.  6,  7. 

VOL.   I, — 13 


106  HISTORIA  PLACITORUM  CORON,^. 

4.  A  prorex,  viceroy,  custos  resent,  ox  jiisticiorius  Jlnglix,  which 
import  ill  substance  the  same  office,  viz.  the  king's  heiitenant  in  his 
absence  out  of  the  kingdom,  is  not  a  king  within  this  act,(2)  though 
his  power  be  very  great,  and  all  commissions,  writs  and  patents  pass 
under  his  teste  ;  and  the  same  law  is  touching  the  lord  lieutenant  or 
justitia7'it(s  Hiberniae  or  his  deputy.    Vide  .statu/.  Hibernian. 

Rot..  Pari.  31  H.  6.  n.  3S.  4-  39.  Richard  duke  of  York  by  the 
king's  letters  patent,  and  by  consent  of  parliament,  was  constituted 
protector  &)-  defensor  regni,  S,'  ecclesix  Anglicanse  S/-  consiliarius 
regis  principalis,  till  the  full  age  of  the  prmce,  or  till  discharged  of 
that  employment  by  the  king  in  parliament  by  the  consent  of  the 
lords  spiritual  and  temporal;  though  this  were  a  high  office,  and. 
exceeded  much  the  power  of  a  protector  of  the  king  during 
[  107]]  his  minority,  such  as  were  the  earl  of  Per)ibroke  to  H.  3. 
and  the  duke  oi  Somerset  to  E.  6,  yet  this  protector  was  not 
a  king  within  this  statute, 

III.  I  come  to  the  third  division,  what  shall  be  said  a  compassing 
or  imagining  of  the  death  of  the  king,  queen,  or  prince. 

The  words  compass  or  imagine  are  of  a  great  latitude. 

1.  They  refer  to  the  purpose  or  design  of  the  mind  or  will,  tho  the 
purpose  or  design  take  not  etfect. 

2.  Compassing  or  imagining  singly  of  itself  is  an  internal  act,  and 
without  something  to  manifest  it,  could  not  possibly  fall  under  any 
judicial  cognizance,  but  of  God  alone;  and  therefore  this  statute 
requires  such  an  overt-act,  as  may  render  the  coiupassing  or  imagin- 
ing capable  of  a  trial  and  sentence  by  human  judicatories. 

And  yet  we  find  that  other  laws,  as  well  as  ours,  make  compassing 
or  conspiring  the  death  of  the  prince  to  be  crimen  Isesx  mojestatis, 
though  the  effect  be  tfoi  attained. 

Ad  legem  Jitliam  majesiatis  in  Codice(«)  in  the  law  of  Honorius 
and  Arcadius,  Quisquis  cum  militibus,  vel  privatis,  vel  barbaris  sce- 
lestam  inierit  factionem,  vel  factionis  ipsius  susceperit  sacramentum 
vel  dederit,  de  nece  etiam  virorum  illustrium,  qui  consiliis  &  consis- 
torio  nostro  iiUersunt,  senatorum  etiam  (nam  &  ipsi  pars  corporis  nos- 
trisutU,)  velcujustibet  postremu,  qui  nobis  militat,cogitaverit,  (eadem 
enim  severitate  voluntatem  sceieris,  qua  etfectum,  puniri  jura  volue- 
runt)  ipse  quidem,  utpote  majesiatis  reus,  gladio  feriatur,  bonis  ejus 
omnibus  fisco  nostro  addilis. 

A  bare  accidental  hurt  to  the  king's  person,  in  doing  a  lawful  act, 
without  any  design  or  compassing  of  bodily  harm  to  the  king,  seems 
not  a  compassing  of  the  king's  deatli  within  this  act. 

Walter  Tirrcl  by  command  of  IViUiam  Rufus  shot  at  a  deer; 
the  arrow  glanced  from  an  oak,  and  killed  the  knig;    Tirrcl  fi'd,  but  i 
this  being  purely  accideutal,  without  intention  of  doing  tlie  king  any 
harm,  hath  been  held  not  to  be  a  compassing  of  the  king's  death. 
Co.  P.  C.p.  6.  Paris  ^'  Hovcden  anno  tilt.  IVillieimi  secundi. 

Calculating  of  the  king's  nativity,  or  thereby  or  by  witchcraft,  &c. 

(2)  Co.  I\  C.  p.  8.  (a)  Lib.  IX.  tit.  8.  I.  5.  pr. 


HISTORIA  PLACITORUM  CORON.E.  108 

seeking  to  know,  and  by  express  words,  writing,  &c.  publishing 
and  declaring  how  long  the  king  shall  live,  or  who  shall  succeed  him, 
or  advisedly  or  mahciously  to  that  intent  uttering  any  prophecies, 
seems  not  a  compassing  of  the  king's  death  within  the  statute  of  25 
E.  3.{h)  but  was  made  felony  during  the  life  of  queen  Elizabeth  by 
23  Eliz.  cap.  2  and  before  that,  was  only  punishable  by  fine  and 
ransom.   Co.  P.  C.  p.  6, 

Compassing  the  death  of  the  king  is  high  treason, (c)  though  it  be 
not  edected ;  but  because  the  compassing  is  only  an  act  of  the  mind, 
and  cannot  of  itself  be  tried  without  some  overt-act  to  evidence  it, 
such  an  overt-act  is  requisite  to  make  such  compassing  or  imagina- 
tion high  treason. [S]     Ee  quo  infra. 

IV,  Therefore  as  to  the  overt-act  in  case  of  compassing  the  death 
of  the  king,  queen,  or  prince. 

1.  Tiiough  the  words  in  the  statute  of  25  E.  3.  and  he  provably 
thereof  attaint  by  open  deed,  &c.  come  after  the  clause  of  levying  of 
war,  yet  it  refers  to  all  the  treasons  before-mentioned,  viz.  compass- 
ing tlie  death  of  the  king,  queen,  or  prince.  Co.  P.  C.  6.  12.  and 
therefore  what  is  said  here  concerning  the  compassing  of  the  death  of 
the  king  is  applicable  to  queen  and  prince. 

And  therefore  in  an  indictment  of  treason  for  compassing  the  death 
of  the  king,  queen,  or  prince,  there  ought  to  be  set  down  both  the 
treason  itself,  viz.  Quod  preditorie  compassavit  &  imaginatus  fuit 
mortem  &  destructionem  domiui  regis,  &  ipsum  dominum  regem  in- 
terficere,  and  also  the  overt-act,  &  ad  illam  nefandam  &  preditoriam 
compassationem  &  propositum  perimplend',  and  then  set  down  the 
particular  overt-act  certainly  and  sufficiently,  without  which  the  in- 
dictment is  not  good.     Co.  P.  C.  p.  12. 

2.  If  men  conspire  the  death  of  the  king  and' the  manner, 

and  thereupon  provide  weapons,  powder,  harness,  poison,  or  [  109  ] 
send  letters  for  the  execution  thereof,  this  is  an  overt-act 
within  this  statute.     Co.  P.  C.p.  12. 

3.  Though  the  conspiracy  be  not  immediately  and  directly  and 
expressly  the  death  of  the  king,  but  the  conspiracy  is  of  something 
that  in  all  probability  must  induce  it,  and  the  overt-act  is  of  such  a 
thing  as  must  induce  it ;  this  is  an  overt  act  to  prove  the  compassing 
of  the  king's  death,  which  will  be  better  explained  by  the  instances 
themselves,  and  therefore, 

4.  If  men  conspire  to  imprison  the  king  by  force  and  a  strong  hand, 
till  he  hath  yielded  to  certain  demands,  and  for  that  purpose  gather 
company  or  write  letters,  this  is  an  overt-act  to  prove  the  compassing 

(h)  Even  before  UiA  statute,  viz.  Hit.  18.  E.2,  Rot.  24.  rex  coram  rege,  there  was  an 
instance  of  several  persons  charged  with  endeavouring  to  conipass  the  king's  death  by 
necromancy  by  making  his  image  in  wax,  6fC.  yet  they  were  appealed  only  de  felonio 
6f  malrjicio,  and  were  all  aequilled  by  the  jury. 

(f)  Insomuch  that  where  the  king  is  actually  murdered, it  is  the  compassing  his  death 
which  is  the  Ueason,  and  not  the  killing,  which  is  only  an  overt-act.  Kel.  8. 

[8]  Overt  acts  must  not  only  show  the  intentions  of  the  heart ;  but  they  are  tiie  means 
made  use  of  to  effectuate  the  purposes  of  the  heart.     Fusi.  203. 


109  HISTORIA  PLACITORUM  CORONA. 

of  the  king's  death,  for  it  is  in  effect  to  despoil  him  of  his  kingly 
government,  and  so  adjudged  by  all  the  judges  in  the  lord  Cohham's 
case,  1  Jac.(d)  and  in  the  case  of  the  Earl  of  Essex,  43  Eliz.,{e)  Co. 
P.  C.  p.  12.  But  then  there  must  be  an  overt-act  to  prove  that  con- 
spiracy to  restrain  the  king,  and  then  that  overt-act  to  prove  such 
a  design  is  an  overt-act  to  prove  the  compassing  the  death  of  the 
king. 

But  then  this  must  be  intended  of  a  conspiracy  forcibly  to  detain 
or  imprison  the  king;  and  therefore,  when  in  the  time  of  E.  2.  in 
parliament  a  commission  was  somewhat  hardly  gotten  from  the  king, 
which  seemed  to  curb  his  prerogative  too  much,  the  answer  of  the 
judges  to  the  general  question,  "  Qualem  poenam  merentur  illi,  qui 
compulerunt  sive  arctarunt  regem  ad  consentiendum  diet'  statut'  ordi- 
nation' &  commission'  ?  ad  quam  qusestionem  unanimiter  responde- 
runt,  quod  sunt,  ut  proditores,  merito  puniendi,  ^o/.  Par/.  11.  R, 
2."(/)  was  too  rash  and  inconsiderate,  and  for  which  the  judges  them- 
selves were  condemned  as  traitors,  as  before  is  shown  ;{g)  for  compiil- 
er\inldi\'\A  arctaverunt  may  have  a  double  construction ;  either  it  may 
be  intended  of  an  actual  force  used  upon  the  person  of  the  king,  as 
by  restraint,  imprisonment,  or  injury  to  his  person,  to  enforce 
[  110  3  his  consent  to  that  commission ;  and  then  it  had  not  differed 
from  the  execrable  treason  of  the  Spencers,  who  declared, 
that  since  the  king  could  not  be  reformed  by  suit  of  law,  it  ought  to 
be  done  per  aspertee,  for  which  they  were  banished  by  two  acts  of 
parliaraent.(A)  Vide  7  Co.  Rep.  fol.  11.  in  Calvin's  case.  2.  Or  it 
might  be  intended,  not  of  a  personal  compulsion  upon  the  king,  but 
by  not  granting  supplies,  or  great  persuasion  or  importunity,  and  then 
it  could  not  be  treason;  the  latter  whereof  was  the  only  compulsion 
or  arctation,  which  was  used  for  the  obtaining  that  commission. 

And  therefore  the  judges  that  delivered  that  opinion,  were  inex- 
cusable in  their  decision  of  treason  under  such  ambiguous  and  large 
expressions  of  cojnpulerunt  <5'  arctaverxini;  and  tho  the  parlia- 
ment of  11  R.  2.  was  repealed  by  21  R.  2.  yet  that  again  was  re- 
pealed 1  H.  4.  cap.  3. 

5.  A  conspiring  to  depose  the  king,  and  manifesting  the  same  by 
some  overt-act,  is  an  overt-act  to  prove  the  compassing  of  the  death 
of  the  king  within  this  act  of  25  E.  3.  Videl  Mar.  B.  Treason  24. {i) 
Co.  P.  C.  p.  12. 

(d)  Slate  Trials,  Vol.  J.  p.  206.  (e)  State  Trials,  Vol.  I.  p.  199. 

(/)  State  Trials,  Vol.  I.  p.  9.  >    i<r)  rap.  W.p.'M. 

{h)  One  in  the  reinfn  of  Edward  11.  called"  Exilium  Hugonis  le  Spencer;  wad  the  other 
in  anno  1  Edvxtrd  111.  cap.  1.  . 

(!)  Broke  makes  this  quare :  "Quaere  vel  depriv  ,  car  home  polt  depriver,  &  uncoro 
intctide  null  morte,  cSt  pur  ccst  cause  un  statute  I'uit  cut  fait  tempore  H.  8.  tSf  E.  6.  Nuta." 
The  statutes  here  referred  to  are  2G  //.  8.  cup.  13  by  which  it  was  made  hif;ii  treason 
"to  wish  or  desire  by  words  or  wiilinjr,  or  to  iinajriue,  or  invent,  or  attempt  to  deprive 
the  kinjr,  tlic  queen,  or  tlieir  heirs  apparent  of  the  din^nity,  title,  or  name  of  their  royal 
estates."  And  1  E.  6.  cap.  12.  by  which  it  was  made  highly  penal  (for  the  third  offense 
liifjh  treason)  "to  compass  or  imagine  by  open  preachiiijr,  express  words  or  sayinj^s,  to 
de[)ose  or  deprive  the  king,  his  Ijcirs,  or  successors,  kings  of  this  realm,  from  his  or  their 
royal  estate  or  titles  to  or  of  tlic  realm  aforesaid." 


HISTORTA  PLACITORUM  CORONA.  HO 

It  is  true,  that  by  the  statute  of  21  i?.  2.  Ca.  3.  it  was  enacted, 
That  every  man  that  compasseth  or  purposeth  the  death  of  the 
king,  or  to  depose  him,  or  to  render  up  his  homage  ht^ge,  or  he  that 
raiseth  people,  and  rideth  against  the  king  to  malje  war  within  his 
realm,  and  of  tliat  be  duly  attainted  and  adjudged  in  parliament, 
shall  be  adjudged  as  a  traitor  of  high  treason  against  the  crown; 
and  this  act  is  particularly  repealed  by  the  statute  of  1  H.  4.  cap.  10. 
as  a  great  snare  upon  the  subject ;  for  it  is  recited,  that  by  reason 
thereof  no  man  knew  hoiv  he  ought  to  behave  himself,  to  do,  speak, 
or  say,  for  doubt  of  such  pains  of  treason. 

But  the  true  reason  was  not  in  regard  of  the  four  points 
themselves,  for  many  of  them  were  treasons  within  the  [  111  ] 
statute  of  25  i5.  3.  but  that  wherein  the  act  of  21  R.  2.  varied 
from  the  act  of  25  E.  3.  were  these:  1.  That  the.  compassing  to  levy 
war  is  made  treason  by  the  statute  of  21  i?.  2.  whereas  the  levying 
of  war  only  was  treason  by  25  E.  3.  Again  2dly,  Tho  compass- 
ing the  death  of  the  king  was  treason  within  the  letter  of  25  E.  3. 
and  compassing  to  depose  him  was  an  evidence  or  overt  act  of  a 
compassing  of  the  king's  death  within  the  meaning  of  the  act  of  25 
E.  3.  yet  both  required  an  overt-act.  The  statute  of  21  B.  2.  makes 
the  bare  purposing,  or  compassing,  treason,  without  any  overt-act; 
and  though  it  restrains  the  judgment  thereof  to  the  parliament,  yet  it 
was  too  dangerous  a  law  to  put  men's  bare  intentions  upon  the  judg- 
ment even  of  parliament  under  so  great  a  penalty,  without  some 
overt-act  to  evidence  it:  this  was  one  reason  of  the  repeal  of  the 
treasons  declared  by  the  statute  of  21  /?.  2.  But  this  was  not  all,  for 
in  that  parliament  of  21  B.  2.  the  resolutions  of  the  judges  to  the 
questions  propounded  by  the  king  are  entered  at  large,  and  received 
an  approbation  not  only  by  the  suffrage  of  some  other  judges  and 
Serjeants,  but  by  the  statute  made  in  the  same  parliament,  as  appears 
at  large  by  the  statute  of  21  B.  2.  cap.  12. 

And  therefore,  wholly  to  remove  the  prejudice  that  might  come  to 
the  king's  subjects  by  those  rash  and  unwarrantable  resolutions,  the 
statute  of  1  H.  4.  Ca.  10.  was  made,  reducing  treasons  to  the  standard 
of  25  E.  3.  and  the  entire  parliament  of  21  B.  2.  also  repealed  as 
app^ears  1  H.  4  Ca.  3. 

6.  Regularly  words,  unless  they  are  committed  to  writing,  are  not 
an  oven-dict  within  this  statute.    Co.  P.  C.  p.  14;(A?)  and  the  rea- 
son given  is,  because   they   are  easily  subject  to  be  mis- 
taken, or  misapplied,  or  misrepeated,  or  misunderstood  by  [  112] 
the  hearers.(/.) 

(h)  Vide.  Co.  P.  C.  p.  38,  140.  The  passages  quoted  5".  P.  C.  2.  b.  from  Braclon  and 
Britton,  only  describe  the  forin  of  accusation,  but  are  far  from  proving  that  words  alone 
were,  in  the  opinion  of  those  writers,  a  sufficient  evidence  of  treason  ;  but  if  they  were  so 
at  common  law,  yet  it  d6is  not  follow,  that  they  would  be  so  by  the  statute  of  25  E.  3. 
which  expressly  requires  the  proof  of  an  overt-act,  and  consequently  disallows  the  evi- 
dence of  bare  words,  for  words  and  acts  are  contra-distinguished  from  each  other.  See 
Co.  P.  C.  14  in  inarjiiTie.  The  preamble  of  1  Murioi,  cap.  1.  sess.  1.  makes  it  matter  of 
complaint,  that  many  had  for  words  only  suffered  shameful  death. 

Cl)  This  is  one  but  not  the  only  reason,  for  another  reason  was,  because  men  in  a  pas. 


112  HISTORIA  PLACITORUM  CORONA. 

And  this  appears  by  those  several  acts  of  parhament,  which  were 
temporary  only,  or  made  some  words  of  a  high  nature  to  be  but 
felony.  Co.  P.  C.  cap.  4.  p.  37.  The  statute  of  3  H.  1.  cap.  14. 
makes  conspiring  the  king's  death  to  be  felony;  which  it  would  not 
have  done,  if  the  bare  conspiring  without  an  overt-act  had  been 
treason. 

26  H.  8  cap.  13.  malicious  publishing  by  express  writing  or  words, 
that  the  king  were  an  heretic,  schismatic,  tyrant,  infidel,  or  usurper, 
enacted  to  be  high  treason. (m) 

1  E.  6.  cap.  12.  If  any  person  or  persons  do  affirm  or  set  forth  by 
open  preaching,  express  words  or  sayings,  that  the  king,  his  heirs  or 
successors,  is  not  or  ought  not  to  be  supreme  head  of  the  church  of 
England  and  Ireland ;  or  is  not  or  ought  not  to  be  king  of  England, 
France^  and  Ireland;  or  do  compass  or  imagine  by  open  preaching, 
express  words  or  sayings  to  depose  or  deprive  the  king,  his  heirs  or 
successors  from  his  or  their  royal  estate  or  titles  aforesaid,  or  do 
openly  publish  or  say  by  express  words  or  sayings,  that  any  other 
person  or  persons,  other  than  the  king,  his  heirs  or  successors,  of  right 
ought  to  be  kings  of  this  realm;  every  such  offender  being  convicted, 
for  his  first  oflense  shall  forfeit  his  goods,  and  be  imprisoned  during 
the  king's  pleasure;  for  the  second  otTense  shall  lose  his  goods  and 
the  profits  of  his  lands  during  \\{e,  and  shall  suffer  imprisonment  dur- 
ing life ;  and  the  third  offense  is  made  high  treason. 

But  if  this  be  done  by  writing, (?z)  printing,  overt-deed,  or  act,  then 
every  such  oflense  is  high  treason  by  the  act  of  25  E.  3.[9] 

sion  or  heat  might  say  many  things,  which  tliey  never  designed  to  do;  the  law  therefore 
required,  that  in  a  case  of  so  nice  a  nature,  where  the  very  intention  was  so  higlily  penal, 
the  reality  of  tliat  intention  should  be  made  evident  by  the  doing  of  some  act  in  prosecu- 
tion thereof. 

(/«)  This  same  statute  makes  it  high  treason  to  wish  or  desire  by  words  or  writing  to 
deprive  the  king  of  his  dignity. 

(n)  This  is  said  by  Lord  Coke,  P.  C.  14.  and  in  Sidney^s  case.  State  Tr.  Vol.  III.  p. 
733.  it  is  said,  scribe  est  efjere ;  qucere  tamen,  for  if  our  author  argues  rightly,  that  words 
were  not  treason  by  25  E.  3.  because  tliere  needed  new  acts  to  make  them  so  in  particu- 
lar cases  afterwards,  the  same  argument  holds  good  with  respect  to  writing,  especially  if 
not  published;  for  there  were  also  new  acts  to  make  that  treason. 


[&]  Although  writings  cannot  be  laid  as  an  overt  act,  unless  published,  yet  if  they  tend 
to  prove  any  overt  act  laid,  they  shall  be  admitted  in  evidence  for  that  purpose,  although 
never  ])ublish<Ml.  R.  v.  Lord  Preston,  4  St.  Tr.  410.  440.  R.  v.  Layer,  6  St.  Tr.  272.  R. 
V.  Watson,  137.  And  the  pa])ers  found  in  Sidney's  closet,  had  they  been  plainly  relative 
to  tiie  otlier  treasonable  practices  charged  in  the  indictment,  might  have  been  read  in 
evidence  against  him.  Fost.  198.  4  lU.  Com.  80.  The  papers  found  in  Lord  Preston's 
custody,  those  found  where  Mr.  Laijer  had  deposited  them,  and  the  intercepted  letters 
of  Dr.  Hensey,  were  all  read  in  evidence  as  overt  acts  of  the  treasons  respectively  charged 
on  them  ;  for  tliey  were  all  written  in  prosecution  of  certain  determinate  purposes  which 
were  treasonable,  and  then  in  coritoinplation  of  tiie  offenders;  and  such  papers  being 
found  in  the  custody  of  the  prisoners  are  admissible  in  evidence,  without  any  proof  of 
the  hand-writinir  bein;r  theirs,  ^'reo-jr's  ('use,  10  iS7.  Tr.  Appdx.  77.  Dr.  Hensei/'s  Case, 
Burr.  614.  Kvidenee  of  the  same  nature  was  received  in  the  case  of  Home  Tooke  and 
others,  at  tl)e  Old  Bailey,  in  171)4,  as  also  in  Stone's  Case,  Ilil.  36  Geo.  3.  And  iitot  only 
was  evidence  received  of  such  papers  as  were  foimd  in  their  own  possession,  but  also  of 
such  as  were  found  in  the  possession  of  tlieir  accomplices;  the  connexion  between  them 
being  first  proved.    1  East,  P.  C.  IIU. 


HISTORIA  PLACITORUM  CORONA.  113 

So  much  of  this  act,  as  concerns  any  thing  in  derogation 
of  the  papal  supremacy,  is  repealed  by  the  statute  of  I  S,'  2  [  113  ] 
Fh.  S,'  M.  cap.  8.    And  so  much  as  concerns  treason,  farther 
than  it  stands  settled  by  25  E.  3.  is  repealed  by  the  statute  of  1  Mar. 
cap.  1.  sess.  1.     But  the  rest  of  this  act,  that  concerns  only  misde- 
meanors, stands  perpetual,  as  it  seems. 

Bv  1  (§•  2  P.  4*  M.  cap.  9.  Prayers  by  express  words,  that  God 
v/ould  shorten  the  queen's  days,  or  take  her  out  of  the  way,  or  such 
hke  malicious  prayer,  amounting  to  the  same  effect,  made  treason; 
but  if  person  penitent  upon  his  arraignment,  no  judgment  to  ensue  ;(o) 
the  like  provision  is  made  daring  the  queen's  life  by  23  Eliz.  cap.  2. 

1  4'2  P.  ^'  M.  cap.  10.  Compassing  to  levy  war  against  the  queen, 
or  to  depose  her  or  the  heirs  of  her  body,  and  maliciously,  advisedly, 
and  directly  uttering  such  compassing  by  open  preaching,  express 
words  or  sayings;  and  also  affirming  by  preaching,  express  words 
or  sayings,  maliciously,  advisedly  and  directly,  that  the  queen  ought 
not  to  be  queen  of  this  realm,  is  punishable  by  loss  of  goods  and 
chattels,  whole  profits  of  the  offender's  lands  during  life,  and  perpe- 
tual imprisonment ;  and  the  second  offense  is  made  high  treason  ; 
but  if  this  be  done  by  writing,  printing,  or  overt-act,  then  it  is  made 
high  treason. 

1  Eliz.  cap.  5.  the  same  act  almost  verbalim  for  the  safety  of 
queen  Elizabeth  and  the  heirs  of  her  body. 

By  13  Eliz.  cap.  1.  Compassing  the  death  or  bodily  harm  of  the 
queen,  or  to  deprive  her  of  the  imperial  crown,  or  to  levy  war  against 
her;  at)d  such  compassing,  maliciously,  expressly  or  advisedly  uttered 
or  declared  by  printing,  writing,  cyphering, speech,  words  or  sayings; 
and  also  malicious,  advised  and  direct  publishing  and  declaring  by 
express  words  or  sayings,  that  she  ought  not  to  be  queen,  that  she 
is  an  heretic,  schismatic,  tyrant,  infidel,  or  usurper,  is  made  high  trea- 
son in  the  principal,  procurers  and  abettors. (;;) 

14  Eliz.  cap.  1.  Compassmg  to  take,  or  detain,  or  burn 
the  queen's  castles,  and  such  compassing  declared  by  any  [  114  ] 
express  words,  speech,  act,  deed,  or  writing,  is  made  felony  ; 
but  the  actual  taking,  or  vvith-holding,  or  burning  them,  is  made 
treason. 

13  Car.  2.  cap.  1.  Compassing  the  death  of  the  king  or  any  bodily 
harm  tending  to  his  wounding,  imprisonment,  or  restraint,  or  to  de- 
p'ose  him,  or  to  levy  war  against  him,  or  to  stir  foreigners  with  force 
to  iiivade  the  kingdom,  and  such  compassing  declared  by  printing, 
writing,  preaching  or  malicious  and  advised  speaking,  is  made  high 
treason:  publishing  or  affirming  the  king  to  be  an  heretic  or  a  papist, 
or  that  he  endeavours  to  bring  in  popery  ;  or  inciting  the  people  by 

(o)  This  last  clause  extended  to  such  only,  who  had  been  g^uilty  during  tliat  session  of 
parliament,  for  the  act  had  a  retrospect  to  the  beginning  of  the  session. 

(p)  "  The  indictments  and  attainders  of  treason  by  Ibrce  of  tliis  statute  are  not  more 
to  be  lollowed;  because  the  statute,  which  made  them  good,  is  expired."  Co.  P.  C.  p.  10. 
in  the  margin. 


114  HISTORIA  PLACITORUM  CORONiE. 

writing,  printing,  preaching,  or  other  speaking  to  hatred  of  his  ma- 
juSty  or  the  government,  disables  to  hold  office. («7) 

By  ail  which  it  seems,  that  regularly,  1.  words  of  themselves  can- 
not make  high  treason ;  2.  words  of  themselves  are  not  a  sufficient 
overt-act  within  the  statute  of  25  E.  3.  to  serve  an  indictment  of  com- 
passing the  king's  death. [10] 

And  with  this  agrees  that  notable  case  of  Mr.  Pi/ne  in  Crake's  re- 
ports, T.  4  Car.{r)  the  words  of  which  are  these  :  "  Upon  considera- 
tion of  the  precedents  of  the  statutes  of  treason  it  was  resolved  by 
the  seven  judges  there  named,  and  so  certified  to  his  majesty,  that  the 
speaking  of  the  words  there  mentioned,  tho  they  were  as  wicked 
as  might  be,  were  not  treason;  for  they  resolved,  that,  unless  it  were 
by  some  particular  statute,  no  words  will  be  treason;  for  there  is  no 
treason  at  this  day,  {viz.  4  Car.  1.)  but  by  the  statute  of  25  E.  3.  for 
imagining  the  death  of  the  king,  S,'c.  and  the  indictment  must 
[  115]  be  framed  upon  one  of  the  points  in  that  statute;  and  the 
words  spoken  there  can  be  but  evidence  to  discover  the  cor- 
rupt heart  of  him  that  spake  them;  but  of  themselves  they  are  not 
treason,  neither  can  any  indictment  be  framed  upon  them." 

Baker  in  his  Chronicle,  p.  229,  tells  us  of  two  very  hard  judg- 

{q)  No  penalties  are  to  be  incurred  by  this  act,  unless  the  prosecution  be  within  six 
months  next  after  the  offense  committed.  See  also  the  4  Ann.  cap.  8.  and  6  Ann.  cap.  7. 
whereby  it  is  made  high  treason  to  declare  by  writing  or  printing-,  that  the  queen  is  not 
lawful  or  rightful  queen,  or  that  any  other  person  hath  right  to  the  crown  otherwise  than 
according  to  tlie  acts  of  settlement,  or  that  the  kings  or  queens  of  this  realm  by  autho- 
rity of  parliament  are  not  able  to  make  laws  of  sufficient  force  and  validity  to  bind  the 
descent  of  the  crown:  persons  who  declare  the  same  by  preaching  or  advised  speaking 
incur  a  prmmunire ;  but  no  prosecution  to  be  for  words  spoken,  unless  information  be 
given  upon  oath  before  a  justice  of  peace  within  three  days  after,  and  the  prosecutioa 
be  witliin  three  months  after  such  information. 

(r)  Cro.  Car.  125. 


[10]  This  doctrine  is  maintained  with  great  ability  by  Sir  Michael  Foster,  see  his  C 
L.  202  et  seq :  Bluckstone,  (4  Cum.  80.)  says,  "But  now  it  seems  clearly  to  be  agreed 
that,  by  the  common  law  and  the  statute  of  Edw.'S.  words  spoken  amount  only  to  a  high 
misdemeanour,  and  no  treason.  F'or  they  may  be  spoken  in  heat,  without  any  intention, 
or  be  mistaken,  perverted,  or  misremembered  by  the  hearers;  their  meaning  depends 
always  on  their  connexion  with  other  words  and  things;  tiiey  may  signify  differently 
even  according  to  the  tone  of  voice,  with  which  they  are  delivered;  and  sometimes 
eilence  itself  is  more  expressive  than  any  discourse.  If  the  words  be  set  dovirn  in  writ- 
ing, it  argues  more  deliberate  intention;  and  it  has  been  held  that  writing  is  an  overt  act 
of  treason;  for  scrihcre  est  agere.  But  even  in  this  case,  the  bare  words  are  not  the  trea- 
son, but  the  deliberate  act  of  writing  them.  And  such  writing,  tliongh  unpublished,  has 
in  some  arbitrary  reigns  convicted  its  author  of  treason."  But  Hawkins,  {ch.  17.  sects. 
3H  to  31).)  reasons  differently;  amongst  other  things  he  observes,  that  to  charge  a  man 
with  speaking  treason,  is  uiiqucstionably  actionable,  which  could  not  be,  if  no  words 
could  amount  to  treason ;  also,  that  as,  in  case  of  felony,  he  who  by  command  or  persua- 
sion imiuceth  another  to  commit  felony,  is  an  accessary  in  felony,  so  he  who  does  the 
same  in  treason  is  a  piincipal  traitor,  (there  being  no  accessaries  m  treason,  but  all  being 
pririci[):ils,)  and  yet  such  person  doth  not  act  but  by  words.  And  in  another  place  (ch, 
17.  s.  4f).)  -'neither  does  it  apjx'ar  to  nu;  that  my  Lord  ("hief  .lustiee  Hiile  was  at  all  of 
this  opinion;  for  though  in  the  hitler  edition  of  his  Trealisr  of  the  Plens  of  the  CroioUf 
it  is  s:iid,  that  compassintr  by  bare  words  is  not  an  overt  act,  &c.  yet  in  tiie  first  edition, 
published  in  the  year  1()78,  it  is  twice  said,  that  it  hath  been  adjudged  that  words  are  aa 
overt  act."     Sec  R.  v.  Lord  George  Gordon,  Dougl.  5^0.  1  East,  I'.  C,  117. 


HISTORIA  PLACITORUM  CORONA.  115 

ments  of  treason  given  in  the  time  of  E.  4.  viz.  that  of  Walter  Wal- 
ker, dwelling  at  the  sign  of  the  crown  in  Cheapside,  who  told  his  httle 
child  if  he  would  be  quiet,  he  would  make  him  heir  of  the  crown  : 
the  other  of  Thomas  Burde/f,{s)  who  having  a  white  buck  in  his 
park,  which  in  his  absence  was  killed  by  E.  4.  hunting  there,  wished 
it,  iiorns  and  all,  in  his  belly  that  counselled  the  king  to  it;  where- 
as in  truth  none  counselled  him  to  it,  but  he  did  it  of  himself:  for 
these  words  both  these  were  attaint  of  high  treason,  and  executed: 
thontrh  Markha?n  chief  justice  rather  chose  to  leave  his  place,  tlian 
assent  to  this  latter  judgment.  Vide  indictment  of  treason  for  trea- 
sonable words,  P.  3  H.  4.  Kot.  4.  <§•  12.  Walton's  case  and  Southe's 
case.(/) 

Therefore  tho  this  be  regularly  true,  that  words  alone  make  not 
treason  or  an  overt-act,  yet  it  hath  these  allays  and  exceptions. 

(1.)  That  words  may  expound  an  overt-act  to  make  good  an  in- 
dictment of  treason  of  compassing  the  king's  death,  which  overt-act 
possibly  of  itself  may  be  inditferent  and  unapplicable  to  such  an  in- 
tent ;  and  therefore  in  the  indictment  of  treason  they  may  be  joined 
with  such  an  overt-act,  to  make  the  same  applicable  and  expositive  of 
such  a  compassing,  as  may  plainly  appear  by  many  of  the  precedents 
there  cited. (?/) 

(2)  That  some  words,  that  are  expressly  menacing  the  death  or 
destruction  of  the  king,  area  sufficient  overt-act  to  prove  that 
compassing  of  his  death  M  9  Car.  B.  R.  Crohagan's  case  f  116] 
in  Croke,{x)  who  being  an  Irish  priest,  7  Car.  1  at  Lisbon 
in  Portugal  used  these  words,  ''^  I  will  kill  the  king  (innuendo 
dominum  Carolum  regem  Jlnglicc)  if  I  may  come  unto  him^^^ 
and  in  Jiiig.  9.  Caroli  he  came  into  England  for  the  same  pur- 
pose.(;y)  This  was  proved  upon  his  trial  by  two  witnesses,  and  for 
that  his  traitorous  intent  and  the  imagination  of  his  heart  was  de- 
clared by  these  words,  it  was  held  high  treason  by  the  course  of  the 
common  law,  and  within  the  express  words  of  the  statute  of  25  E.  3. 
and  accordingly  he  was  convicted,  and  had  judgment  of  high  trea- 
son; yet  it  is  observable,  that  there  was  somewhat  of  an  overt-act 
joined  with  it,  namely,  his  coming  into  England,  whereby  it  seems  to 
be  within  the  former  consideration,  namely,  tho  the  coming  into 
England  was  an  act  indiflerent  in  itself,  as  to  the  point  of  treason-; 

(s)  See  Rapin's  history  sub  anno  1478.  who  mentions  it  in  the  same  manner;  but  it 
appears  from  the  indictment  in  Cro.  Car.  120.  that  he  was  indidted  for  calculating  the 
kinir's  and  prince's  nativity,  and  declarinfj  that  they  would  not  live  long;  and  also  .for 
publishing  seditious  rhymes  and  ballads,  although  this  was  not  treason,  and  was  there- 
tore  made  felony  during  queen  Elizahetirs  lite,  by  23  Eliz.  cap.  %  Co.  P.  C.  p.  6. 

(/)  iMutli's  (not  South's)  and  Walton's  case  are  Trin.  3  H.  4,  coram.  re<re  rot.  4.  and  P. 
3  //.  4.  coram  rei/e  rot.  12.  in  Sperhauck's  case,  who  was  also  convicted  of  treason  for 
scoitdalous  svords. 

(n-)  ]a  Pyne's  case.  (:t)  Cro.  Car.  332. 

(V)  1  his  case  docs  by  no  means  prove,  that  words  alone  are  a  sufRciont  overt-act,  for 
lier(-v;iMC  not  otily  thrciitning  words,  but  also  an  act  done  in  order  to  put  that  threatiiing 
in  execution;  so  that,  as  our  author  admits,  it  comes  more  properly  under  the  former 
Jicad;  the  resolution  therefore  in  Kelijng  13.  that  words  are  an  overl-act,  which  is  founded 
on  thii  case,  must  fall  to  the  ground. 

VOL.  I. — 14 


116  HISTORIA  PLACITORUM  CORONA. 

yet  it  being  laid  in  the  indictment,  that  he  came  to  that  purpose,  and 
that  in  a  great  measure  expounded  to  be  so  by  his  minatory  words, 
the  words  coupled  with  the  act  of  coming  over  make  his  coming  over 
to  be  probably  for  that  purpose,  and  accordingly  applicable  to  that 
end. 

To  say  that  the  king  is  a  bastard,  or  that  he  hath  no  title  to  the 
crown,  is  held  high  treason.  M.  5  Jac.  Yelvert.  197.  BlanchJiower''s 
case,  4*  ibidem  Hill.  S  Jac.  Berisfurcfs  case.(z) 

P.  13  Jac.  B.  R.{a)  John  Owen  alias  Collins  was  indicted 
(]  117  J  of  treason,  for  that  he,  intending  the  king's  death,  /also  Sf 
ma  I  iliose  spake  these  words  of  the  king:  The  king  being 
excommunicate  by  the  pope  may  be  lawfully  deposed  and  killed  by 
any  whatsoever,  which  killing  is  not  murder;  and  being  demanded 
by  Henri/  While,  how  he  durst  utter  such  a  bloody  and  fearful  con- 
clusion, Owen  answered,  "  The  matter  is  not  so  heinous,  as  you  sup- 
pose, for  the  king  being  the  less  is  concluded  by  the  pope  being  the 
greater:  and  it  is  all  one  as  a  malefactor  being  convicted  by  a  tem- 
poral judge  is  delivered  to  execution,  so  the  king  being  convicted  by 
the  pope  may  be  lawfully  slaughtered  by  any  whatsoever,  for  this  is 
the  execution  of  the  supreme  sentence  of  the  pope,  as  the  other  is  the 
execution  of  the  law  :"  to  this  indictment  he  pleaded  not  guilty; 
and  it  was  ruled  to  be  high  treason  by  Coke  chief  Justice  and  all  the 
Court ;  and  being  found  guilty  he  had  judgment  to  be  hanged,  drawn 
and  quartered. (6)  And  here  it  was  said  by  the  king's  attorney (c) 
upon  the  evidence,  and  not  denied  by  the  court,  1.  that  the  statute  of 
(25.  E.  3,  as  to  compassing  the  king's  death  was  but  an  affirmance  of 
the  common  law,  2.  That  it  is  treason  by  the  laws  of  all  nations;  and 
therefore  an  embassador  for  compassing  the  king's  death  shall  be 
executed  here  for  treason;  but  tor  other  treasons  shall  be  remitted 
into  his  own  country  to  be  tried.  3.  That  words  of  this  nature  spoken 
defuturo  have  been  adjudged  high  treason  presently;  and  therefore 
it  was  there  said  to  be  adjudged  in  the  time  of  H.  S.  in  the  case  of 
the  duke  of  Bucks,  that  these  words  were  high  treason,  If  the  king 

(?)  This  case  is  likewise  reported  Cro.  Jac.  275.  and  1  Buls.  147.  but  both  the  cases  quoted 
here  by  our  autlior,  were  actions  for  scandalous  words,  and  tlie  single  point  in  judgment 
before  the  court  was,  whctlier  the  words  were  actionable,  and  even  as  to  that  Yelverton 
and  Croke  in  BcvUford^s  case  dilfcred  from  ti)c  other  judges;  so  tliat  none  of  these  cases  . 
prove,  that  bare  words  arc  an  overt-act  of  treason  williin  2.')  Ed.  3.  indeed  vvlicre  any  one 
not  only  utters  words  declaring  his  own  thoughts,  but  endeavours  by  promises  of  reward 
or  other  arguments  to  persu:ide  another  to  kill  the  king,  or  the  like,  this  has  been  con- 
str.ucd  an  overt-act  of  treason,  because  here  is  something  besides  the  words,  here  is  an 
attempt  to  draw  another  into  the  design,  and  is  as  much  an  overt-act  as  an  agreement  or 
a  consultation  how  to  effect  it.  Lr)rd  Stafford's  ease,  Slate  Tr.  Vol.  111.  p.  208.  Charnock's 
case,  Slate   Tr.  Vol.  l\ .  p.  681.  2.Salk.  G31. 

{a)  1  Roll.  Rip.  l«o. 

(ii)  These  words,  tho  very  wicked  and  of  a  mischievous  tendency,  and  therefor^  an 
high  misdemeanor,  yet  unless  aecDMipanied  with  some  circumstances  to  show  that  tliey 
were  made  use  otin  order  to  persuade  somebody  to  kill  the  king,  cannot  according  to  tlie 
resolution  in  I'yne's  case  amount  to  an  overt-act  ofliigh  treason,  for  they  are  not  any  act 
at  all,  and  besides  might  be  said  by  .a  bigoUed  papist,  in  the  height  of  his  ignorant  zeal, 
•without  intending  or  imagining  the  death  of  the  king. 

(c)  Bacon. 


HISTORIA  PLACITORUM  CORONA.  117 

shntthl  arrest  him  of  hi^h  treason^  he  ivoiild  stab  him;  (videca.se 

dt  duke  Bucks,  13  H.  8.  11.  b.  12.  a.  where  there  are  other  words 

also  ;)(fy)  and   in  the  case  of  another.  If  H.  8.  will  not  take  again 

qxieen  Catlierine  as  his  wife,  he  shall  not  be  king  ;{e)  and  in 

the  case  of  Stanley,  Temp.  H.  7.    That  if  Pierce  Warbeck  [  118  ] 

were  the  son  ofJu.  4.  he  would  take  part  with  him  against 

H.  7.(/) 

And  note,  that  king  James  had  been  long  excommunicated  by  the 
pope,  and  that  every  Maunday  Thursday  the  pope  excommunicates 
all  Calvinists,  <$'c.  and  all  that  have  withdrawn  their  obedience  from 
the  pope:  Owen  was  executed  accordingly,  F'ide  la{g)  the  whole 
judgment  and  particulars  and  consequence  thereof, 

7.  Those  words,  which  being  spoken  will  not  make  an  overt-act 
to  make  good  an  indictment  of  compassing  the  king's  death;  yet,  if 
they  are  reduced  into  writing  by  the  delinquent  either  letters  or 
books,  and  published, (/6)  will  make  an  overt-act  in  the  writer  to 
make  good  such  an  indictment,  if  the  matters  contained  in  them  zm- 
port  such  a  compassing,{i)\\2']  Co.  P.  C p.  14. 

Instances  of  this  kmd  are  many  in  4  Cur.  Croke,ubi  supra:  but  I 
shall  instance  particularly  only  in  IVilliams^s  case,  P.  11  Jac.  B.  R.ik) 

{d)  There  was  also  somewhat  of  an  overt-act  joined  with  the  words;  for  being  told  by 
a  monk,  that  he  should  be  king-,  and  commanded  to  obtain  the  good  will  of  the  com- 
nionaliy,  he  was  accused  of  giving  certain  robes  for  that  intent:  this  duke's  case  was 
counted  hard,  and  his  fate  is  lamented  by  the  reporter, 

(c)  This  was  the  case  of  Elizabeth  Barton,  the  holy  maid  o?  Kent:  the  words  as  related 
by  lord  Bacon  in  his  history  of  Henry  VII.  p.  134.  were  these;  "  That  if  king  Henry  the 
eighth  did  not  take  Catharine  his  wife  again,  he  should  be  deprived  of  his  crown,  and 
die  the  death  of  a  dog."  She  and  her  accomplices  were  attainted  of  treason  by  a  particular 
act  of  parliament,  riz.  25.  H.  8.  cap.  12.  upon  which  lord  Coke  observes,  Co.  P.  C.  14. 
that  they  could  not  have  been  attainted  of  treason  within  25  E.  3. 

(/)  Lord  Bacon  in  his  history  of  Henry  VII.  p.  134.  reports,  that  the  criminal  words, 
for  which  Stanley  was  accused,  were  these;  ''That  if  he  was  sure,  that  the  young  man 
{Perkin  Warbeck)  were  king  Edward's  son,  he  would  never  bear  arms  against  him." 
Upon  which  the  historian  makes  this  observation;  "This  case  seems  somewhat  an  hard 
case,  both  in  respect  of  the  conditional,  and  in  respect  of  the  other  words,  S^c." — But  (says 
he)  "Some  writers  do  put  this  out  of  doubt;  for  they  say,  tlmt  Stanley  did  expressly  pro- 
mise to  aid  Perkin,  and  sent  him  some  help  of  treasure."  And  it  appears  by  the  record  of 
Stanley's  indictment  quoted  in  Cro.  Car.  p.  123.  that  he  was  accused  not  only  of  words, 
but  of  an  express  agreement  and  conspiracy  to  bring  in  Peter  Warbeck  and  make  him 
king.  Note,  That  the  lord  Bacon,  whose  history  is  here  quoted,  is  tiie  attorney  general 
mentioned  in  Owen's  case, 

is)  1  Rol.  Rep.  185. 

(rt)  In  Peacham's  case  quoted  in  Cro.  Car.  125.  an  unpublished  writing  was  admitted 
in  evidence  as  an  overt-act  of  treason;  the  like  in  tlie  case  of  Col.  Sidney,  State  Ti .  Vol. 
WI.  p.  710.  but  both  those  cases  were  unwarrantable;  as  to  the  first  it  does  not  appear 
there  was  any  judgment,  for  the  book  says  it  was  against  the  opinion  of  many  of  tlie 
judges,  and  the  latter  was  resolved  at  a  time  of  day,  when  the  resolution  of  the  judges, 
in  such  an  affair  ought  to  be  but  little  regarded  ;  that  judgment  was  accordingly  reversed 
by  act  of  parliament,  1  W.  S^  M.[\\] 

(i)  As  was  Ticyn's  case,  Kelyns  22.  for  report  says,  that  the  people  were  exhorted  by 
that  book  to  put  the  king  to  death.  Slate.  Tr.  Vfil.  2.  p.  524. 

(k)  This  case  (which  seems  a  very  hard  one)  is  reported,  2  Rol.  Rep,  88.  and  is 
quoted,  Cro.  Car.  125.  , 

[11]  Hallam's  Const.  His.  1  vol.  p.  409.  Fost.  198. 

[12]  "But  this  is  indefinitely  expressed ;  and  the  case  of  Williams,  under  James  I. 
which  Hale  cites  in  corroboration  of  this,  will  hardly  be  approved  by  any  constitutional 
lawyer."    3  Hallam,  213.  note. 


119  HISTORIA  PLACITORUM  CORONA. 

JVilliams  wrote  a  book,  intitled  Balaam's  Ass.{l)  in 
[  119  ]  whicli  there  were  many  tliitigs  reproachful  and  dangerous, 
to  the  king,  and  among  others,  that  the  kins;,  should  die 
anno  domiiii  1621,  and  that  the  realm  should  he  destroyed,  because 
it  was  anti-christian  and  the  ubomincttion  of  desolation:  this  book 
he  inclosed  and  sealed  up  in  a  box  and  sent  it  to  the  king;(w)  and 
for  this  he  was  indicted  and  attainted  and  executed  tor  high  treason, 
vide  Co.  P.  C.  14.  concerning  words,  where  it  is  said  thus:  '•'■But  if 
the  same  be  set  down  in  writijig  by  the  delinquent  himself,  this  is  a 
sufficient  overt-act  within  this  statute.'^  And  the  same  law  it  is, 
if  it  be  set  down  in  writing  by  any  other  by  his  command  or  direction. 

8.  If  there  be  an  assembling  together  to  consider  how  they  may 
kill  the  king,  this  assembUng  is  an  overt-act  to  make  good  an  indict-, 
ment  of  compassing  the  king's  death.     This  was  ./^r^en'*  case,(n) 
26  Eliz.n.nd  accordingly  it  was  ruled  Decern.  14.  Caroli  at  Newgate^ 
in  the  case  of  Tonge  and  other  confederates. (o) 

By  my  lord  Coke's  opinion,  Co.  P.  C.  14.  "A  conspiracy  to  levy 
■war  is  no  treason  by  the  statute  of  25  E.  3.  till  war  be  levied ;" 
and  there  have  been  several  particular  and  temporary  acts,  that 
make  the  conspiracy  to  levy  war  treason,  as  well  as  compassing  the  • 
king's  death.  And  therefore  he  saith,  "That  it  hath  been  resolved, 
35  Eliz.  that  conspiracy  to  levy  war  against  the  king  shall  rii3t  be 
said  an  overt-act,  to  serve  an  indictment  for  the  compassing  the 
king's  death,  because  the  clauses  concerning  compassing  of  the 
king's  death,  and  that  of  levying  war,  are  distinct  clauses,  and  de- 
clare distinct  treasons;  and  thefefore  the  latter  shall  not  be  an  overt- 
act  to  serve  the  former,  because  this  were  to  confound  several  classes 
or  membra  dividentia  of  high  treason."[13] 

And  yet  in  the  same  book,/?.  12.  the  case  of  the  earls  of 
j^  120  ]  Essex  and  Southampto7i,  43  Eliz.  are  cited,  which  seem  to 
contradict  that  opinion  ;  the  words  are,  "That  the  said  earls 
intended  to  go  to  the  court  where  the  queen  was,  and  to  have  taken 
her  into  their  power,  and  to  have  removed  divers  of  her  council,  and. 
for  that  end  did  assemble  a  multitude  of  people;  this  being  raised  to  the 
end  aforesaid  was  a  sufficient  overt-act  for  compassing  the  death  of  the 
queen,'^  which  seems  to  contradict  what  is  elsewhere  by  him  said.(/;) 

(I)  He  wrote  two  books,  one  called  Balaavi's  Ass,  and  the  other  Speculum  Regale. 

{m)  In  thi.s  case  was  first  broached  that  famous  doctrine,  sccjfcere  est  agere.  The 
court  went  so  far  as  to  declare  it  to  be  their  opinion,  that  if  thi.s  book  had  been  found 
in  his  study,  it  would  liave  been  a  sufficient  evidence  of  the  treason,  for  which  lie  was 
indicted;  but  this  case  destroys  its  own  authority  by  going  too  far,  for  they  agreed 
it  to  be  a  clear  point,  Ihut  bare  words  might  amount  to  treason;  strange  contradiction 
of  the  statute  of  25  Ed.  3. 

(n)  Anderson,  pars.  I.  p.  104.  (o)  Krlyng  17.  State  Tr.  Vol.  11.  p.  474. 

{p)  I  do  not  see  how  this  contradicts  what  is  said  by  lord  Cuke,  p.  14.  for  he-re  was  an 
express  design  to  put  the  person  of  the  <pieen  under  a  force ;  niy  it  had  proceeded  farther 
than  a  design,  for  there  was  a  multitude  actually  assembled  for  that  end.  State  Tr.  Vol. 
I.  p.  190. 

[13]  lyord  Hale  was  once  himself  of  this  opinion.  In  his  Summarij  of  the  Fleas  of  the 
Crown,  p.  13.  he  says,  "Conspiring  to  levy  war  no  overl-act,  uuless  levied,  because  it 
relates  to  a  distinct  treason." 


HISTORIA  PLACITORUM  CORONJ^..  120 

And  he  that  shall  read  the  proceeding  against  the  duke  of  Norfulk 
set  forth  at  large  by  Camden  Eliz.  sub.  anno  \512.  p.  170.  <5'  seqite/i- 
iibus,  will  find,  that  not  only  the  conspiring  with  a  foreign  prince  to 
invade  this  kingdom,  and  signifying  it  to  him  by  letters,  is  an  overt- 
act  to  maintain  an  indictment  for  compassing  the  queen's  death:  but 
tliat  the  duke's  purpose  to  marry  the  queen  of  Scotland,  who  had 
formerly  laid  claim  to  the  crown  of  England,  and  signifying  it  by 
letters,  and  all  this  done  without  the  consent  of  the  queen  of  England^ 
was  held  an  overt-act  to  depose  the  queen  of  Eyigland,  and  to  com- 
pass her  death  ;  for  if  the  queen  of  Scots  claimed  the  crown  of  En- 
gland,  he  that  married  her,  must  be  presumed  to  claim  it  also  in  her 
right,  which  was  not  consistent  with  the  safety  of  the  queen  of  En- 
gland, and  her  title  to  the  crown  ;  and  altho  this  extending  of  treason 
(as  to  this  point  of  marriage)  by  illation  and  consequence  was  hard  \{q) 
yet  the  duke  was  convict  and  attaint  of  treason  generally  upon 
this  indictment,  tho  there  are  likewise  some  other  crimes  charged  in 
the  indictment. 

I  will  therefore  set  down  the  resolutionsof  the  judges  1663.  touch- 
ing those  that  were  assembled  in  Yorkshire  at  Farley  Wood,[r)  di- 
vers of  whom  were  after  indicted,  and  attainted  of  higli  treason  for 
compassing  the  death  of  the  king :  the  resolution  was  in 
these  words,  as  I  have  transcribed  it  verbatim  cut  of  a  MS.  [  121  ~\ 
of  my  lord  keeper  Bridgman  then  chief  justice  of  the  C.  B. 
who  was  present  at  the  conference,  Fuit  agree  par  les  justices  sur 
conference  touchant  ceux,  queux  assemble  eux  in  Farley  Wood  in 
Yorkshire  1663,  que  sur  indictment  pur  compassing  mort  le  roy  overt 
fait  poet  estre  layd  in  consulting  a  levyer  guerre  contre  lui  (que  est 
overt-act  de  soy  mesnie)  &  actual  assembling,  &  levying  guerre:  Et. 
ou  Co.  P.  C.  14.  dit,  "  Qe  conspiracy  a  levyer  guerre  nest  treason, 
tanquc  soit  levyed,  &  pur  ceo  nest  overt-act,  ou  manifest  proofe  de 
compassing  mort  le  roy,  car  le  parols  sont,  (de  ceo)  i.  e.  compassing 
niort  le  roy,  &  ceo  soit  a  oonfounder  le  several  classes,  ou  membra 
dividentia  :"  Uncor  le  ley  est  contra  ;  &:  issint  fuit  resolve  per  touts 
les  justices  <§•  councel  de  roy  in  le  case  des  regicides,  T^enner,  Tonge 
<5*  yane,{s)  que  sur  indictment  de  compassing  de  mort  le  roy,  con- 
sulting a  levyer  guerre,  ou  actual  assembhng  de  guerre  fueront  evi- 
dence, &  overt  fails  provant  compassing  mort  le  roy  ;  &  ceo  appeirt 
in  Co.  P.  C.  14.  "Si  subject  conspire  ove  forein  prince  de  invader 
le  realm,  &  prepare  pur  ceo  per  overt  fait,  ceo  est  sufficient  overt-act 
pur  mort  le  roy :  Et  ibidem  p.  13.  Le  count  de  Essex  8,-  Soittk^  in- 
tended daler  al  court,  &daver  prise  lareigneen  lour  power,  ^-  remover 
ascun  de  councel,  &  a  ceo  fine  assembled  multitude  de  people  ;  this 
being  raised  for  the  end  aforesaid  fuet  sufficient  overt-act  pur  com- 
passing de  mort  le  roy,"  queux  2  cases  sont  expresse  contrary  al 
primer. 

(7)  According:  to  lord  Coke's  understanding  of  the  statute  of  25  Ed.  3.  it  was  not  only 
hard  but  illeg'al,  for  by  that  statute  no  one  ouL'ht  to  be  convicted  by  inferences  or  illations. 
Coke,  F.  C.  p.  1-2.  "= 

(r)  Kelyug,  13.  (s)  Kclyng,  20,  21. 


121  HISTORIA  PLACITORUM  CORONA. 

Fait  auxi  agree,  que  si  un  overt-act  soil  lay  en  le  enditement,  & 
le  proof  est  dun  outre  overt-act  de  mesme  le  kinde,  ou  species  de 
treasorj,  ceo  est  assets  bone  evidence. 

I  must  confess,  that  I  could  never  assent  to.  this  last  part  of  the 
resohition :  tho  I  know  it  was  so  practised  in  criminal  cases  in  the 
star-chamber,  for  I  liave  always  thought,  1.  That  the  overt-act  is  an 
essential  part  of  the  indictment.  2.  As  it  must  be  laid,  so  it  must  be 
proved ;(/)  for  otherwise,  if  another  act  than  what  is  laid  should  be 
sufficient,  the  prisoner  would  never  be  provided  to  make  his- 
r  122  ]]  defense. [14]  3.  That  more  overt-acts  than  one  may  be  laid 
in  an  indictment,  and  then  the  proof  of  any  of  them  so  laid, 
being  in  law  sufficient  overt-acts,  maintains  the  indictment.  4.  That 
if  any  overt-act  be  sufficiently  laid  in  the  indictment,  and  proved,  any 
other  overt-acts  may  be  given  in  evidence  to  aggravate  the  crime 
and  render  it  more  probable. 

This  resolution,  as  to  the  point  of  compassing  the  king's  death, 
being  the  latter  and  of  great  weight,  and  more  than  twice  practised, (t/) 
ought  to  out-weigh  the  opinion  before  cited,  and  with  this  agrees 
the  resolution  of  13  Eliz.  Dyer  298.  b.  in  Dr.  St  or  ie' s  c?ise,  who 
conspired  with  a  foreign  prince  to  invade  this  realm;  it  was  adjudged 
an  overt-act  to  make  good  an  indictment  of  compassing  the  queen's 
death. (a:)  Vide  Anderson's  Rejiorls  Placito  154.  which  was  the 
case  of  »/^;*fl(e;^  and  Somerville  and  others,  who  conspired  the  death 
of  queen  Elizabeth,  resolved  by  all  the  justices,  that  a  meeting 
together  of  these  accomplices  to  consult  touching  the  manner  of 
^effecting  it  was  an  overt-act  to  prove  it,  as  well  as  Somerville' s  buy- 
ing of  a  dagger  actually  to  have  executed  it.  Jlnderson's  Rep.  Pars, 
l.^p.  104. 

And  yet  this  difference  seems  to  me  agreeable  to  law,  and  recon- 
ciles in  some  measure  both  resolutions. 

(<)  Kelyng  8.  is  contra,  however  this  point  is  put  out  of  all  doubt  by  7  W.  3.  cap.  3. 
§  8.  whereby  it  is  provided  tliat  no  evidence  shall  be^iven  of  any  overt-act,  which  is  not 
expressly  laid  in  the  indictment. 

(m)  But  yet  it  does  by  no  means  follow  from  thence,  that  this  resolution  is  right  as  to 
this  point  any  more  than  as  to  the  other  resolved  at  the  same  time,  which  yet  our  author 
thinks  to  be  wrong;  were  it  a  point  of  common  law  tlie  repeated  resolutions  of  the  judges 
is  the  only  way  to  know  what  the  law  is;  but  where  the  question  arises  upon  an  act  of 
parliament,  that  is  to  be  the  rule  for  courts  of  justice  to  go  by,  of  which  they  are  to  judge 
according  to  tiieir  own  reason  and  understanding,  and  are  not  in  such  cases  tied  down 
by  former  dctermin;itions  any  farther  tlian  the  reasons  or  arguments  thereof  appear  con- 
clusive, for  judicandum  est  legihus  non  excniplis.  Co.  P.  C  6  in  inargine.  A  bare  con- 
spiracy to  levy  war  is  certainly  not  treason,  and  was  so  adjudged  in  the  case  of  Sir  John 
Friend;  but  if  it  appears  upon  evidence,  that  the  design  was  to  kill  the  king,  or  depose 
him  or  imprison  him,  or  put  any  force  on  him,  and  the  levying  war  was  only  the  way  or 
method  made  use  of  to  ('ffcct  that  design,  then  it  will  be  an  overt-act  of  compassing  the 
death  of  the  king:  and  this  is  the  dislinclion  taken  by  lord  chief  justice  Holt  in  Sir  John 
Frimd's  case,  Statr.  Tr.  Vol.  IV.  p.  613,  614. 

(:i)  See  2  Vent.  315. 

[14]  The  clause  in  the  Constitution  of  the  United  States  which  says,  that  in  all 
criminal  prosecutions,  the  accused  siiall  enjoy  the  riglit  "  to  be  informed  of  the  nature 
and  cause  of  tiie  accusation,"  soMires  to  him  suclj  information  as  will  enable  him  to  pre- 
pare for  his  defence.    2  Burr's  Trial,  424. 


HISTORIA  PLACITORUM  CORONA.  122 

An  assembly  to  levy  war  against  the  king,  either  to  depose  or 
restrain,  or  enforce  him  to  any  act,  or  to  come  to  his  presence  to 
remove  his  counsellors  or  ministers,  or  to  fight  against  the  king's 
lieutenant  or  mihtary  commissionate  officers,  is  an  overt-act 
proving  the  compassing  of  the  death  of  the  king;  for  such  [  123  ] 
a  war  istlirected  against  the  very  person  of  the  king,  and  he, 
that  designs  to  fight  against  the  king,  cannot  but  know,  at  least,  it 
must  hazard  his  life;  such  was  the  case  of  the  earl  of  Essex  and 
some  others.  [15] 

But  if  it  be  a  levying  of  war  against  the  king  merely  by  interpre- 
tation and  construction  of  law,  as  that  o{  Burt07i.{y)  and  others,  to 
pull  down  all  enclosures,  and  that  of  the  apprentices  in  London 
lately,  to  pull  down  all  bawdy-houses, (r)  de  quibiis  infra,  this  seems 
not  to  be  an  evidence  of  an  overt-act  to  prove  compassing  the  king's 
death,  when  it  is  so  disclosed  upon  the  proof,  or  if  it  be  so  particu- 
larly laid  in  the  indictment ;  though  prima  facie  if  it  be  barely  laid 
as  a  levying  war  against  the  king  in  the  indictment,  it  is  a  good 
overt-act  to  serve  an  indictment  of  compassing  the  king's  death,  till 
upon  evidence  it  shall  be  disclosed  to  be  only  to  the  purpose  afore- 
said, and  so  only  an  interpretative  or  constructive  levying  of  war. 
And  Burton\s  case  39  Eliz.  seems  to  intimate,  as  much,  because 

(y)  Co.  P.  C.  10.  (2)  Kel  70. 

[15]  It  gradually  became  an  established  doctrine  with  lawyers,  that  a  conspiracy  to 
levy  war  against  the  king's  person,  tliough  not  in  itself  a  distinct  treason,  may  be  given 
in  evidence  as  an  overt  act  in  compassing  his  death.  Great  as  the  authorities  may  be  on 
which  this  depends,  and  reasonable  as  it  surely  is,  that  such  offences  should  be  brought 
within  the  pale  of  high  treason,  yet  I  must  confess,  that  this  doctrine  has  ever  appeared  to 
me  utterly  irreconcilable  with  any  fair  construction  of  the  statute.  It  has  indeed  by  some, 
been  chiefly  confined  to  cases  where  the  attempt  meditated  is  directly  against  the  kind's 
person  for  the  purpose  of  deposing  him,  or  of  compelling  him,  while  under  actual  duress, 
to  a  change  of  measures;  and  this  was  construed  into  a  compassing  of  his  death,  since 
any  such  violence  must  endanger  his  life,  and  because,  as  has  been  said,  the  prison  and 
graves  of  princes  are  not  very  distant.  But  it  seems  not  very  reasonable  to  found  a 
capital  conviction  on  such  a  sententious  remark,  nor  is  it  by  any  means  true  that  a  de- 
sign against  a  king's  lite  is  necessarily  to  be  inferred  from  the  attempt  to  get  possession 
of  his  person.  So  far  indeed,  is  this  from  being  a  general  rule,  that  in  a  multitude  of 
instances,  especially  during  the  minority  or  imbecility  of  a  king,  the  purposes  of  the  con- 
spirators would  be  totally  defeated  by  the  death  of  the  sovereign  whose  name  they  de- 
signed to  employ.  But  there  is  still  less  pretext  for  applying  the  same  construction  to 
sciiemcs  of  insurrection,  when  the  royal  person  is  not  directly  the  object  of  attack,  and 
when  the  circumstances  indicate  any  hostile  intentions  towards  his  safety.  This  ample 
extension  of  so  ptnal  a  statute,  was  first  given,  if  I  am  not  mistaken,  by  the  judges  in 
lo63,  on  occasion  of  a  meeting  by  some  persons  at  Farley  Wood  in  YorksJiire,  in  order 
lo  concert  measures  for  a  rising.  But  it  was  afterwards  confirmed  in  Harding''s  case, 
(~  vcnir.  317.)  immediately  after  the  revolution,  and  has  been  repeatedly  laid  down  from 
the  bench  in  subsequent  proceedings  for  treason,  as  well  as  in  treatises  of  very  great 
authority.  It  has,  therefore,  all  the  weight  ot  established  precedent;  yet  I  question 
whelhiT  another  instance  can  be  found  in  our  jurisprudence,  of  giving  so  large  a  con- 
strurtion,  not  only  to  a  penal,  but  to  any  other  statute.  Nor  does  it  speak  in  favour  of 
this  construction,  that  temporary  laws  have  been  enacted  on  various  occasions,  to  render 
a  conspiracy  to  levy  war  treasonable  ;  for  which  purpose,  according  to  the  current  doc- 
trine the  statute  of  Edward  III.,  needed  no  sup|)lcmental  provision.  Such  acts  were 
I)asscd  uniler  Uliznhclh,  Charles  II,  Sj  George  III.,  each  of  them  limited  to  the  existing 
rcign.  3  Hallavi's  Cons,  His.  2U7. 


123  HISTORIA  PLACITORUM  CORONA. 

they  took  him  to  be  indictable  only  upon  the  statute  of  13  Eliz.  cap.  1. 
for  conspiring  to  levy  war  against  the  queen,  whereas  if  this  had 
been  an  overt-act  to  prove  the  conipassi»)g  of  the  death  of  the  king, 
the  fact  had  been  treason  within  25  E.  3.  as  surely  it  would  have 
been,  if  he  had  conspired  to  have  raised  a  war  directly  against  the 
king  or  his  forces,  and  assembled  people  for  that  purpose,  tho  an 
actual  war  had  been  caused  by  him. 

But  such  a  levying  of  war  may  in  process  of  time  rise  into  a  direct 
war  against  the  king  ;  as  if  the  king  send  his  forces  to  suppress  them 
and  they  fight  the  king's  forces;  and  then  it  may  be  an  overt-act  to 
prove  the  compassing  of  the  king's  death. [16] 

And  thus  far  of  compassing  the  king^s  death. 

Something  I  shall  add  touching  the  compassing  of  the  death  of  the 
queen,  ox  prince,  wherein  I  shall  first  consider,  what  sliall  be  said  the 
qneen,  or  their  eldest  son  within  this  act.  2.  What  a  compassing  of 
their  death. 

1.  A  queen  dowager,  namely  the  queen  after  the  deatli 
\_  124  ]  of  her  husband,  is  not  a  queen  within  this  act,  for  tho  she 
bear  the  title  of  queen,  and  hath  many  prerogatives  answer- 
ing the  dignity  of  her  person,  yet  she  is  not  (his  queen)  or,  as  the 
other  parts  of  the  act  express  it,  [his  companion)  it  must  be  the  queen 
consort,  the  king's  wife,  and  during  the  marriage  between  them. 

2.  The  queen  divorced  from  the  king  a  vinculo  nialrimo?iii, dis  for 
cause  of  consanguinity,  is  not  a  queen  within  this  act,  tho  the  king 
be  living :  this  was  the  case  of  queen  Katharine,  who  was  first  mar- 
ried to  prince  ^/Irthnr,  and  by  him,  as  was  said,  carnally  known,  and 
after  his  death  married  to  prince  Henry  (afterwards  king  Henry 
VIII.,)  by  whom  she  had  issue  Mary  (afterward  queen  of  England,) 
and  afterwards  after  twenty  years  marriage  was  divorced  causa, 
affmitatis,  which  divorce  was  confirmed  in  the  parliament  25  H.  8. 
cap.  22. 

This  was  also  the  case  of  his  second  wife  queen  Anne,  who  was 
also  divorced  a  vinculo,  and  that  divorce  confirmed  by  the  statute  of 
2S  H.  8.  cap.  7.  which  nevertheless  was  again  repealed  in  part  by 
the  statute  of  35  H.  8.  cap.  1.  and  in  effect  wholly  by  the  statute  of 
1  Eliz.  cap.  3.  and  yet  there  is  one  clause  observable  in  the  act- of 
28  //.  8.  that  treasons  committed  against  queen  Jlnne,  or  the  lady 
Elizabeth  her  daughter,  mesne  between  the  marriage  and  that 
divorce  were  punishable,  ahho  the  divorce  made  a  nullity  of  the 
marriage;  and  therefore  there  is  a  special  clause  to  pardon  all  such 


[Ifi]  Mv.East  (1  P.  C.  G3.)  suys  tliathc  tlocs  not  know  that  flic  point, that  a  mere  con- 
Btructive  levying  of  war  is  evidence  of  conipassinfr  the  kin{r\s  deatii,  lias  ever  come 
directly  in  judgment.  It  was  not  so  considered  in  Cottoit^s  case,  Kel.  73.  and  tlie  point 
could  notarise  on  the  trials  of  Diunaret  <.y  I'mrliase,  who  were  severally  convicted  upon 
a  constructive  charge  of  ievyinir  war  only;  there  heijig'  no  count  for  coinpassing- the 
queen's  death.  It  must,  however,  be  admitted,  that  the  object  of  a  j/rcat  ri(jt  or  insor- 
reetioti,  eoiiiparativc'ly  trivial  in  its  ori^nn,  may  so  far  vary  by  its  success,  continuance, 
or  otiier  circumstances,  as  to  assume  a  di  cided  tone  of  resistance  to  the  person  of  the  king 
and  liis  government,  and  so  become  an  overt  act  of  compassing  his  deatli.    ■ 


HISTORIA  PLACITORUM  CORONA.  124 

treasons,  so  that  the  relation  of  the  divorce,  and  separation  to  dissolve 
(he  marriage  ab  initio,  was  not  thought  sufficient  to  discharge  those 
treasons,  without  a  special  pardon  discharging  tlie  treasons  commit- 
ted against  tliem. 

]?ut  we  need  not  put  the  case  of  a  divorce  a  mensd  S^'  thoro  causa 
arhilterii,  because  adultery  by  the  king's  wife  is  high  treason  in  her, 
and  so  the  case  of  a  divorce  cannot  well  come  in  question,  for  she 
must  be  executed  for  treason.  P.  28  H.  S.  Spilmeai's  Rep.{a)  33  H. 
8.  cap.  21.(6)  Co.  P.  C.p.  9.[17] 
•  II.   Ou  lour  fit z  eigne  4'  heir. 

At  common  law  compassing  the  death  of  any  of  the  king's  f  125"] 
children,  and  declaring  it  by  overt-act  was  taken  to  be  trea- 
son, Briton,  ubi  supra;  but  by  this  act  it  is  restrained  to  the  eldest 
so?i  and  heir. 

1.  The  eldest  son  and  heir  extends  not  to  a  collateral  heir,  tho 
declared  heir  apparent  to  the  crown,  unless  there  be  a  special  provi- 
sion for  that  purpose  by  act  of  parliament:  thus  Roger  Mortimer 
11  ^.2.  Richard  duke  of  York  39  H.  6.  John  de  la  Poole  tempore 
R.  3.  and  Henry  marquis  of  Exeter  tempore  H.  8.  were  declared 
heirs  apparent  of  the  crown;  yet  compassing  any  of  their  deaths  ia 
the  king's  life  time  was  not  treason  within  this  act.   Co.  P.C.  8,  9. 

And  therefore  in  that  great  agreement  made  in  the  parliament  of 
39  H.  6.  when  Richard  duke  of  York  made  his  claim  to  the  crown, 
and  it  was  enacted,  that  H.  6.  should  hold  the  crown  during  his  life, 
and  that  Richard  duke  of  York  should  succeed  him,  Rot.  Pari.  39 
H.  6.  71.  24.  it  is  specially  enacted,  that  if  any  person  do  compass  or 
imagine  the  death  of  the  duke,  and  thereof  be  attaint  by  open  act,  it 
shall  be  high  treason;  which  had  not  been  so,  unless  it  had  been 
specially  enacted. 

2.  The  king  takes  wife,  and  by  her  hath  issue  two  sons,  the  eldest 
dies,  the  wife  dies,  he  takes  a  second  wife;  this  second  son,  though 
he  were  once  not  eldest,  and  tho  he  be  not  lour  eigne  fitz,  but  only 
the  king's  son,  is  eldest  son  within  this  statute. 

3.  King  Edward  III.  had  issue  the  Black  Prince,  who  had  issue 
Richard  of  Burdeaux  afterwards  king  Richard  II.  his  eldest  grand- 
child, tho  he  were  not,  in  the  life  of  his  father  the  Black  PrincCy 
the  king's  eldest  son  within  this  statute,  yet  his  father  being  dead  in 
the  liie  of  Edward  III.  it  may  be  very  considerable  whether  prince 
Richard  be  the  king's  eldest  son  within  this  statute,  and  the  com- 
passing of  his  death  be  high  treason;  for  he  is  heir  apparent  of  the 
crown,  and  his  heirship  cannot  be  devested  by  any  after  born  child. 

The  duchy  of  Cornwall  was  settled  upon  the  Black  Prince 
&r  ipsius  «S'  hxredum  suorum  regum  Anglias  filiis  prima-  [  126  ~\ 
senilis,  altho  the  king's  eldest  daughter  be  not   duchess 

(a)  In  the  case  of  queen  Anne  Bulen. 

{l>)  In  the  case  of  queen  Katharine  Howard, 


[17]  A  wife  de  facto  until  a  divorce,  is  a  queen  within  this  statute.     But  after  a  di- 
rce,  though  it  be  only  a  mensa  et  thoro,  she  is  not.  Hob.  13.  3G.     See  1  East,  F.  C.  64. 
VOL.  I. — 15 


126  HISTORIA  PLACITORUM  CORONiE. 

o{  Cormvall,  because  not  ^lius,  yet,  (contrary  to  the  opinion  deli- 
vered in  the  prince's  case  8  Co.  Rep.  30.  a)  H.  8.  after  the  dearh  of  his 
brother  prince  v/^r//iwr,  and  our  late  king  Charles,  after  the  death  of 
bis  eldest  brother  prince  Henry,  were  dukes  of  Cornwall  in  the  life 
of  their  fathers:  the  latter  appears  expressly  by  the  statute  of  21  Jac. 
cap.  29.  wherein  it  is  so  declared  by  judgment  of  parliament;  and 
Richard  of  Biirdeaux  was  also  duke  of  Cornwall  after  the  death  of 
his  father  the  Black  Prince,  and  comes  in  the  catalogue  of  dukes  of 
Cornwall  in  the  collection  of  Fincent  and  Mills  of  the  nobility  of 
England;  and  had  the  revenues  thereunto  belonging,  as  appears 
undeniably.  Rot.  Pari.  51  E.  3.  n.  65. 

But  it  seems  it  was  not  by  virtue  of  that  limitation  in  the  grant  to 
the  Black  Prince,  but  by  a  new  special  creation;  for  Rot.  Pari.  50 
E.  3.  n.  50.  the  common  petition,  that  he  might  be  created  duke  of 
Cormvall,  earl  of  Chester,  and  prince  of  Wales;  the  king  declined 
the  doing  of  it  at  their  request,  as  being  a  thing  proper  only  for  the 
king  to  do  his  pleasure  therein:  the  truth  is,  the  king  had  done  it 
before  the  request  made,  viz.  Rot.  Cart.  47,  48  c^'  49  E.  3.  n.  10.  the 
words  of  the  charier  are,  '■^  Ex  consilio  Sc  consensu  prssla torn m,  du- 
cum,  comituni  4'  horonurn,  ipsum  Ricardum  principem  Walliee 
ducem  Cornubise,  8^-  coniitem  Cestria3  fecimus  Sc  creavirniis,''^  and 
grants  him  the  possessions  thereunto  belonging,  which  he  accordingly 
enjoyed:  vide  Rot.  Pari.  51  E.  3.  n.  9.  and  observe  a  certain  estate 
is  limited  by  the  patent  of  creation  for  life;  or  otherwise,  it  seems,  it 
was  thought  fit  to  leave  it  to  the  construction  of  law,  whether  he  had 
it  purely  by  a  new  creation,  or  by  the  construction  of  the  charter 
11  E.  2.  to  the  Black  Prince. 

This  case  therefore  touching  conspiring  the  death  of  such  a  prince, 
as  Richard  of  Burdeaux  then  was,  tho  it  may  be  probable  to  be 
treason  within  the  intent  of  this  act,  is  fittest  to  be  first  decided  by 
parliament  according  to  the  caution  used  in  the  statute  of  25  E.  3. 

3.  If  the  king  of  England  hath  two  daughters  only,  and  no  son, 
the  eldest  daughter  is  not  within  tFie  words  or  intent  of  the 
[  127  ]  king^s  eldest  son  within  this  clause,  for  a  son  may  be  after 
born;    but  several    statutes  have   made    temporary    pro- 
visions iu  this  case;    vide  the  statutes  of  25  H.  8.  cap.  22.  2Q  M, 
8.  cap.  7. 

It  is  true  the  implication  of  Co.  P.  C.  p.  9.  where  it  is  said,  "If 
the  heir  apparent  be  collateral  heir  apparent,  lie  is  not  within  this 
statute,  until  it  be  declared  by  parliament,"  implies  that  the  lineal 
heir,  male  or  female,  is  within  this  statute. 

But  the  implication  of  the  statute  itself  is  against  it,  because  this 
act.  almost  in  the  same  breath  takes  notice  of  the  king's  eldest 
daughter  upon  anotlier  rank  of  treason,  namely  defiling  her;  and  it 
is  not  safe  to  extend  this  act  by  construction. 

The  second  daughter,  living  the  first,  is  certainly  not  within  this 
law,  because  not  immediately    inheritable  to  the  crown. 

Yet  by  the  statute  of  25  //.  8.  cap.  22.  which  was  but  temporary, 
provision  is  made,  that  if  any  thing  should  be  written  or  done  to  the 


J 


HISTORIA  PLACITORUM  CORONA.  127 

peril,  slander  or  disherison  of  any  of  the  issues  and  heirs  between, 
him  and  queen  Jntie,  the  same  should  be  treason. 

Thus  far  touching»lie  persons  of  the  queen  or  prince. 

Now  what  shall  be  said  a  compassing  of  their  death,  or  an 
overt-act  to  prove  the  same:  what  shall  be  said  a  compassing  of  the 
king's  death,  hath  been  at  large  declared,  much  whereof  may  be  ap- 
plied to  the  queen  or  prince,  but  not  universally;  for  the  king  is 
above  the  coercion  of  the  law,  tho  his  actions  are  not  exempted 
from  the  direction  of  the  law  in  many  cases;  but  the  queen  and 
prince  are  subjects  of  the  king,  and  subjects  to  the  laws;  whence 
it  comes  to  pass,  that  there  are  certain  overt-acts  manifesting  com- 
passing the  king's  death,  which  are  specifical  and  appropriate  to 
the  king  and  his  sovereign  power  and  royal  dignity,  which  are  not 
applicable  to  the  queen  or  prince. 

If  a  man  compass  to  imprison  the  king,  tho  it  be  colorably  done 
by  process  of  law,  it  is  a  compassing  of  the  king's  death  within  this 
act,  as  hath  been  shewn. 

But  if  the  queen  or  prince  commit  a  misdemeanor  of  such  a  na- 
ture, as  is  a  contempt  against  the  king's  laws,  to  which  im- 
prisonment is  proper,  as  in  case  of  treason,  felony,  rescue,  [128  ^ 
they  may  be  imprisoned  by  process  of  law  without  danger 
of  treason:  thus  was  the  son  of  Henry  IV.  committed  by  Gascoign 
chief  justice  for  rescuing  a  prisoner  from  the  bar;  and  several  acts  of 
attainder  of  treason  have  passed  in  parliament  against  some  queen- 
consorts,  as  appears  by  28  H.  8.  cap.  7.  33  H.  8.  cap.  21.  against 
queen  Catharine  Howard.     Rot.  Pari.  5  H.  5.  n.  11. 

Again,  to  compass  to  depose  the  king  is  treason,  but  to  compass  a 
divorce  between  the  king  and  queen  by  the  king's  commission  by 
due  process  of  law  was  no  treason,  as  appears  in  the  process  before 
the  archbishop  of  Canterbury,  whereupon  queen  Catherine,  and 
afterwards  queen  Anne  were  divorced. 

The  compassing  therefore  of  the  death  of  the  queen  or  prince, 
which  is  treason  within  this  act,  is  where  a  man  without  due  process 
of  law  expressly  compasseth  the  wounding  or  death  of  them  either 
by  force  or  poison.[18] 

(18]  The  following^  are  some  of  the  instances,  under  the  English  law,  as  it  is  laid 
down  by  the  writers  or  decided  by  the  cases,  of  what  are  deemed  sufficient  overt  acts  of 
compassing  the  king's  death.  Every  thing-  wilfully  or  deliberately  done  or  attempted, 
whereby  the  king's  life  may  be  endangered,  is  an  overt  act  of  compassing  his  death. 
Fast.  l;)5.  Killing  the  king  is  an  overt  act  of  compassing  -liis  death,  and  was  so  laid  in 
the  case  of  the  regicides  of  Charles  I.  Kel.  8.  So,  going  armed  for  the  purpose  of  kill- 
ing  the  king,  R.  v.  Som.err.ille  et  al;  1  And.  104;  providing  arms,  ammunition,  poison, 
or  the  like,  lor  the  purpose  of  killing  the  king,  3  Ins.  12;  conspirators  meeting  and  con- 
sulting of  the  means  of  killing  the  iiing,  Fosl.  195,  R.  v.  Vane,  Kel.  15,  R.  v.  Ton g  el  al, 
id.  1  / ;  or  of  deposing  him,  or  of  usurping  the  powers  of  government,  R.  v.  Hardy  et  al, 
I  East,  P.  V.  GO;  or  resolving  to  do  it,  R.  v.  Rookwood,  4  St.  Tr.  661,  R.  v.  Charnnck, 
Iff.  SG"-,  Salk.  G31 ;  acting  as  counsel  against  the  king,  in  order  to  take  away  his  life, 
R.  V.  (Jokr,  Kel.  12,  R.  v.  Harrison,  2  St.  Tr.  314.  So,  other  species  of  high  treason, 
which  are  distinct  heads  of  treason  in  themselves,  may  be  laid  as  overt  acts  of  compass- 
ing the  death  of  the  king;  thus  levying  war  directly  against  the  king,  Fost.  195.  210. 
4i'4,  Kel.  .,1,3  Jnst.  12;  or  a  conspiracy  to  levy  war  directly  against  the  king  for  the 
purpose  of  detiironing  him,  or  obliging  him  to  change  his  measures,  or  the  like,  Fosf. 


128  HISTORIA  PLACITORUM  CORONA. 

And  thus  much  for  treason  in  compassing  the  death  of  the  king, 
queen,  or  prince;  and  because  the  next  treason  declared,  namely  the 
violation  of  the  king's  wife,  the  king's  eldest  Sten's  wife,  the  king's 
eldest  daughter,  hath  not  much  to  be  said  concerning  it,  I  shall  close 
this  chapter  with  it. 

1.  The  violating;  the  Icing's  companion,  that  is  the  king's  wife, 
the  queen  consort,  her  husband  being  now  living;  this  is  liigh  trea- 
son, and  so  it  is  in  her  if  she  consent.  P.  28  H.  8.  33  H.  8.  cap.  21. 
Co.  P.  C.  p.  9. 

2.  The  wife  of  the  king's  eldest  son  and  heir,  a  princess  consort, 
and  during  the  coverture  between  them;  and  if  she  consent,  it  is 
treason  in  her. 

3.  The  king^s  eldest  daughter  not  married:  this  extends  to  a 
second  daughter,  the  eldest  being  dead;  for  she  is  now  eldest,  and, 
for  want  of  issue  male,  inheritable  to  the  crown;  but  at  common  law 
this  treason  extended  to  any  of  the  daughters.  Briton,  cap.  22.  §.  11. 
It  extends  to  an  eldest  daughter,  tho  there  be  sons ;  and  qudere,  whe- 
ther to  an  eldest  daughter,  that  hath  been  married,  and  is  now  a 

widow,  nient  marry  may  be  construed  either  way;  or  if  it 
[^  129  ]   doth,  yet  whether  it  extends  to  an  eldest  daughter,  that  is  a 

widow,  and  hath  children  by  her  husband;  the  words  of  the 
old  books  are  avant  ceo,  qel  est  marry:  it  seems,  that  if  the  eldest 
daughter  hath  been  once  married,  she  is  not  within  this  law,  because 
of  tiie  words  nient  marry,  tho  the  reason  may  possibly  be  the  same  ; 
and  it  seems,  tho  there  be  sons,  yet  the  violating  of  the  king's  eldest 
daughter,  being  within  the  express  words  of  the  law,  the  violation  of 
her  is  within  this  law,  because  within  the  words;  and  yet  the  viola- 
tion of  the  wife  of  the  king's  second  son  is  not  within  this  statute, 
yet  he  and  his  issue  is  inheritable  to  the  crown  before  the  eldest 
daughter ;  in  this  case  therefore  the  words  of  the  law  are  to  govern. 
Altho  it  should  seem  probable,  that  the  eldest  son  of  the  prince 
after  the  death  of  his  father  may  be  the  king's  eldest  son  within  this 
act,  as  is  before  observed ;  yet  the  daughter  of  the  king's  eldest 
daughter,  after  her  mother's  death,  seems  not  an  eldest  daughter 


197.  211,  R.  V.  Friend,  4  Si.  Tr.  599,  R.  v.  Darrell,  10  Mod.  321,  R.  v.  Layer,  4  St.  Tr. 
229.  332.  R.  v.  Campion  et  al.  Saville,  3,  R.  v.  Lord  Russel,  3  St.  Tr.  705.  R.  v.  Sydney, 
3  St.  Tr.  807.  R.  v.  Cook,  4  St.  Tr.  737.  (But  not  a  conspiracy  to  eftect  a  general  rising 
for  the  purpose  of  throwinjSf  down  all  enclosures,  &c.  or  of  any  otlier  species  of  construc- 
tive levying  of  war.  Fast,  213,  per  Holt,  C.  J.,  Holt,  682.  10  Mod.  322.)  Adhering  to  the 
king's  enemies,  Fast.  li)(),  R  v.  Harding,  2  Vcntr.  315,  R.  v.  Liird  Preston,  4  St.  Tr. 
410,  R.  V.  Stoup,  6  7'.  R.  527;  inciting  foreigners  to  invade  the  realm.  Fost.  196.  R.  v. 
Parkyns,  4  St.  Tr.  627.  Writings  which  import  a  compassing  of  the  king's  death,  are 
suflicient  overt  acts  of  this  species  of  treason,  if  pubhshed,  Fost.  198,  1  Hawk.  c.  17,  s.  31 ; 
as  for  instance,  writings  inciting  persons  to  kill  the  king.  R.  v.  Tioyn,  Kel.  22.  Sqe 
I'yne^s  case,  Cro.  Car.  1 17.  So,  words  of  advice  or  persuasion  arc  sutficient  overt  acts 
of  this  species  of  treason,  if  they  advise  or  persuade  to  an  act  which  would  of  itself  (if 
comniitted)  be  a  sufficient  overt  act.  Fost.  195.  R.  v.  Charnock,  4  iS7.  Tr.  562.  Salk.  631. 
So,  words  may  be  laid  in  the  indictment, to  cx[)lain  an  act;  as  for  instance,  an  act  seem- 
ingly innocent  in  itself^  may  he  shown  to  be  an  act  of  treason,  by  its  connexion  with 
words  spoken  by  the  party  at  the  time.  R.  v.  Crohugan,  Cro.  Car.  332.  R.  v.  Lee,  7  St. 
Tr.  43. 


HISTORIA  PLACITORUM  CORONA.  129 

within  this  act,  her  grandfather  being  Hving,  for  the  grandson,  who 
is  heir  apparent  of  the  crown,  is  of  more  consideration  than  the 
daughter  of  a  daughter,  who  cannot  be  heir  apparent,  because  a  son 
may  be  born. 

Quxre,  Whether  violating  the  eldest  daughter,  after  the  death  of 
the  king  her  father,  be  treason  within  this  act,  where  a  son  succeeds 
to  the  crown  :  it  seems  not,  for  the  relatioti  is  ceased.(c) 

And  thus  far  for  the  two  first  branches  of  high  treason. 


CHAPTER  XIV.  [  130  ] 

CONCERNING  LEVYING  OF  WAR  AGAINST  THE  KING. 

The  JKs  ^ladii,  both  military  and  civil,  is  one  of  the  j^ira  mojes- 
tatisy  and  therefore  no  man  can  levy  war  within  this  kingdom  with- 
out the  king's  commission.  Co.  P.  C.  p.  9.  See  the  statute,  or 
rather  proclamation(tf)  de  defensione  portandi  armo,  wherein  it  is 
recited  by  the  king,  that  the  prelates,  earls,  barons,  and  commonalty 
illueque  asembles  en  evisement  sur  cest  besoigne  nous  eiont  dit,  que 
a  nous  appent  (§•  de  nous  par  nostre  royal  seignorie  defendre^fort- 
ment  des  armes,  4*  de  tout\iulre  force  contre  nostre  pees,  a  touts 
lesfoitz,  que  nous  plerra  ;{b)  and  hence  it  is  in  all  declarations  and 
indictments  touching  things  done  against  the  peace,  the  conclusion 
goes  contra  pacem  domini  regis. 

It  is  true,  there  have  been  great  disputes  in  this  kingdom  touching 
the  disposition  of  the  militia  o{  \h\s  kingdom,  which  are  now  all  set- 
tled, and  declared  to  be  the  right  of  the  crown  by  the  statutes  of  13 
Car.  2.  cap.  6,  and  13  &  14  Car.  2.  cap.  3.[1] 

•(c)  She  is  no  longer  leigne  file  le  roy.  It  having  been  before  observed  that  a  queen 
regent  is  a  king  within  this  act,  it  follows  of  course  that  the  eldest  son  and  eldest  daugh- 
ter of  such  a  queen  is  likewise  within  it.     Co.  P.  C.  p.  8. 

(a)  In  the  seventh  year  of  Edward  I. 

{b)  This  statute  is  only  a  proof  of  the  king's  power  to  issue  his  proclamation  against 
coming  armed  to  the  parliament.     Vide  Rot.  Pari.  25  E.  3.  pars.  I.  n.  58.  dorso. 

[1]  By  the  Constitution  of  the  United  States,  Art.  1,  Sect.  8,  Congress  shall  have  power 
to  provide  for  the  calling  forth  the  militia  to  execute  the  laws  of  the  Union,  suppress  in- 
surrections, and  repel  invasions :  To  provide  for  organizing,  arming,  and  disciplining 
the  mihtia,  and  for  governing  such  part  of  them  as  may  be  employed  in  the  service  of 
the  Liiited  States ;  reserving  to  the  States  respectively,  the  appointment  of  the  officers, 
and  the  authority  of  training  the  militia  according  to  the  discipline  prescribed  by  Con- 
gress. Accordingly  the  following  acts  of  Congress  for  the  establishment  of  an  uniform 
system  for  the  government  of  the  militia,  have  been  passed:  An  Act  more  eftectualiy  to 
provide  for  the  national  defence,  by  establishing  an  uniform  militia  throughout  the  United 
States;  May  8,  1792,  ch.  33.  An  Act  providing  arms  for  the  militia  throughout  the 
United  States,  July  G,  1798,  ch.  65.  An  Act  in  addition  to  an  Act  entitled,  "An  Act 
more  effectually  to  provide  for  the  national  defence,  by  establishing  an  uniform  militia 
throughout  the  United  Slates,''  March  2,  1803,  eh.  15.  An  Act  more  effectually  to  pro- 
vivle  for  the  organizing  of  the  mihtia  of  the  Districtof  Columbia,  March  3, 1803,  ch.  28. 
An  Act  establishing  rules  and  articles  for  the  government  of  the  armies  of  the  United 


130  HISTORIA  PLACITORUM  CORONiE. 

Now  as  to  this  clause  of  high  treason,  Ou  si  home  levy  guerre 
coiintre.  noslre  seigneur  le  roy  en  son  realme. 

To  make  a  treason  within  this  clause  of  this  statute  there  must  be 
three  things  concurring, 

I.  It  must  be  a  levying  of  war. 

II.  It  must  be  a  levying  of  war  against  the  king. 

III.  It  must  be  a  levying  of  war  against  the  king  in  his  realm. 

I.  For  the  first  of  these,  the  act  saith  levy  guerre;  what  shall  be 
said  a  levying  of  war,  is  in  truth  a  question  of  fact,  and  re- 
\_  131  3  quires  many  circumstances  to  give  it.  that  denomination, 
which  may  be  difficult  to  enumerate  or  to  define  ;  and  com- 
monly is  expressed  by  the  words  more  guerrino  arraiati. 

As  where  people  are  assembled  in  great  numbers  armed  with 
weapons  offensive,  or  weapons  of  war,  if  tliey  march  thus  armed  in 
a  body,  if  they  have  chosen  commanders  or  officers,  if  they  march  cum 
vexillis  explicatis  or  with  drums  or  trumpets,  and  the  like ;  whether 
the  greatness  of  their  numbers,  and  their  continuance  together  doing 
these  acts  may  not  amount  to  more  guerrino  arraiati,  may  be  con- 
siderable. • 

But  a  bare  conspiracy  or  consultations  of  persons  to  levy  a  war, 
and  to  provide  weapons  for  that  purpose ;  this,  tho  it  may  in  some 
eases  amount  to  an  overt-act  of  compassing  the  king's  death,  yet  it  is 
not  a  levying  of  war  within  this  clause  of  this  statute  ;  and  therefore 
there  have  been  many  temporary  acts  of  parliament  to  make  such  a 
conspiracy  to  levy  war  treason  during  the  life  of  the  prince,  as  13 
Eliz.  cap.  1.  13  Car.  2,  cap.  1.  and  others.    Vide  accordant  Co. 

P.  c.p.  10. 

Again,  the  actual  assembling  of  many  rioters  in  great  numbers  to 
do  unlawful  acts  if  it  be  not  modo  guerrino  or  in  specie  belli,  as  if 
they  have  no  military  arms,  nor  march  or  continue  together  in  the 
posture  of  war,  may  make  a  great  riot,  yet  doth  not  always  amount 
to  a  levying  of  war :  vide  statute  3  4'  4  J5?.  6.  cap.  5.  1  Mar.  cap. 
12.(C)[2J 

(c)  See  also  1  Geo.  1  cap.  5. 

States,  April  10,  1806,  ch.  20.  An  Act  in  addition  to  the  Act  entitled,  "An  Act  to  pro- 
vide for  calling  forth  the  militia  to  execute  tlie  laws  of  the  Union,  suppress  insurrections, 
and  to  re])eal  the  Act  now  in  force  for  these  purposes,"  April  18,  1814,  ch,  82.  An  Act 
coticernin<r  field  otHcers  of  the  militia,  April  20,  1816,  ch.  64.  An  Act  to  establish  an 
uniform  mode  of  discipiiiie  and  field  exercise  for  the  militia  of  the  United  States,  May  12, 
1820,  ch.  'J6.  An  Act  to  reduce  and  fix  the  military  peace  establishment  of  the  United. 
Slates,  March  2,  1821,  ch.  12,  sect.  14.     See  3  Story  on  Cons.  81. 

[2]  "  It  is  obvious  that  Lord  Hale  supposed  an  assemblage  of  men  in  force,  in  a  mili- 
tary posture,  to  be  necessary  to  constitute  the  fact  of  levying'  war.  'I'he  id^^a  he  appears 
to  suggest,  that  tiie  apparatus  of  war  is  necessary,  has  been  very  justly  coVnbated  by  an 
able  judge,  (Mr.  Justice  Foster ;  see  Disc.  208.)  who  has  written  a  valuable  treatise  on 
the  subject  of  treason;  but  it  is  not  recollected  tiiat  his  position,  that  the  assembly 
should  bo  in  a  posture  of  war  for  any  treasonable  attempt,  has  ever  been  denied."  per 
Marshall,  C.  J.  2  Burr's  Tr.  434.  And  again,  (p.  432.)  "  If  the  party  be  in  a  condition 
to  execute  the  proi)osed  treason,  without  the  usual  implements  of  war,  I  can  perceive  no 
reason  for  rc(}uiring  those  implements  in  order  to  constitute  the  crime." 

Alluding  to  the  dillerence  which  Lord  Hale  makes  (pp.  13L  141. 150  to  153.)  between 


HISTORIA  PLACITORUM  CORONA.  131 

IT.  As  to  the  second;  the  statute  saith,  {against  its)  to  make  it 
therefore  treason,  it  must  be  a  levying  of  war  against  the  king: 
otherwise,  the  it  be  more  g^ierrino,  and  a  levying  of  war,  it  is 
not  treason.  1.  Therefore  if  it  be  upon  a  private  qnarrel,  as  many 
times  it  happened  between  lords  marchers,  tho  it  be  vexillis  expli- 
catis,  it  seems  no  levying  of  war  against  the  king.  2.  If  it  be  only 
upon  a  private  and  particular  design,  as  to  pull  down  the  inclosures 
of  such  a  particular  common,  it  is  no  levying  of  war  against  the  king. 
Co.  P.  C.p.  9.  3.  But  a  war  levied  against  the  king  is  of  two  sorts, 
1.  Expressly  and  directly,  as  raising  war  against  the  king  or  his 
general  and  forces,  or  to  surprise  or  injure  the  king's  [)er- 
son,  or  to  imprison  him,  or  to  go  to  his  presence  to  enforce  [  132  J 
him  (0  remove  any  of  his  ministers  or  counsellors,  and  the 
like.  2.  Interpretatively  and  constructively,  as  when  a  war  is  levied 
to  throw  down  inclosures  generally,  or  to  inhanse  servants  wages,  or 
to  alter  religion  established  by  law;  and  many  instances  of  like  na- 
ture might  be  given  ;  this  hath  been  resolved  to  be  a  war  against  the 
king,  and  treason  within  this  clause;  and  the  conspiring  to  levy  such 
a  war  is  treason,  tho  not  within  the  act  of  25  E.  3.  yet  by  divers 
temporary  acts  of  parliament,  as  13  Eliz.  during  the  queen's  life,  13 
Car.  2.  during  our  king's  life.   Co.  P.  C.  p.  10. [3] 

The  first  resolution,  that  I  find  of  this  interpretative  levying  of  war, 
is  a  resolution  cited  by  my  lord  Coke,  P.  C.  p.  10.  in  the  time  of 
Henry  VIII.  for  inhansing  servants  wages  ;  and  the  next  in  time  was 
\h?\,\.  o(  Burton,  39  Eliz.  Co.  P.  C.  p.  \0.{d)  for  raising  an  armed 
force  to  pull  down  inclosures  generally  :  this  is  now  settled  by  these 
instances,  and  some  of  the  like  kind  liereafter  mentioned  ;  the  pro- 
ceeding against  Burton  and  his  companions  was  not  upon  the  statute 
of  25  E.  3.  which  required,  that  in  new  cases  the  parliament  should 
be  first  consulted;  but  upon  the  statute  of  13  Eliz.  for  conspiring  to 

{d)  Poph.  122.    2.  Wilson,  363. 

insurrections  which  carry  with  them  the  appearance  of  an  army  and  those  assemblies 
which  have  been  drawn  together  without  any  of  the  show  or  apparatus  of  war,  Foster 
says,  ''I  do  not  think  any  great  stress  can  be  laid  on  tiiut  distinction.  It  is  true  that  in 
case  oflevying  war,  the  mdictments  generally  charge  tluit  the  defendants  were  armed 
and  arrayed  in  a  warlike  manner;  and  where  the  case  would  admit  of  it,  the  otiier  cir- 
cumstances of  swords,  guns,  drums,  colours,  &c.  have  been  added.  But  I  think  the 
merits  of  the  case  have  never  turned  singly  on  any  of  these  circumstances.  In  the  case 
o\  Dumaree  S^  Purchase,  (8  St.  Tr.  218.  267.)  there  was  nothing  given  in  evidence  of  the 
usual  pageantry  of  war;  no  military  weapons,  no  banners,  no  drums,  nor  any  regular 
consultation  previous  to  tiie  rising.  And  yet  the  want  of  these  circumstances  weighed 
nothmg  will:  the  Court,  though  the  prisoner's  counsel  insisted  much  on  that  matter. 
The  number  of  the  insurgents  supplied  the  want  of  military  weapons;  and  they  were 
provided  with  axes,  crow.«,  and  other  tools  of  the  like  ni^ure  proper  for  the  mischief  they 
intended  to  effect.  Furor  arma  ministrat'"  It  was  tlie  opinion  of  the  Court  iti  the  case 
oi  Fries,  p.  197,  that  the  legal  guilt  of  levying  war  might  be  incurred  without  the  use 
of  military  weapons  or  military  array. 

Mr.  East  thinks  that  Sir  Matthew  Hulo  did  not  mean  to  carry  his  observations  further 
than  concerned  cases  of  constructive  levying  of  war.  1  F.  C.  67.  Judae  Tucker  is 
strongly  in  fnvoiir  of  the  doctrine  that  warlike  array  and  arms  are  essential  to  complete 
the  crime.  4  Tucker's  Bl.  Apdx.  p.  18.  and  Mr.  LuJers,  in  his  Tract  on  Constructive 
Treason,  pp.  52  &  69,  is  of  tlie  same  opinion. 

[o]  .\iid  36  Geo.  3.  c.  7,  during  that  king's  life. 


132  HISTORY  PLACITORUM  CORONA. 

levy  war,  which  hath  not  that  clause  of  consulting  the  parliament  in 
new  cases,  and  therefore  seems  to  leave  a  latitude  to  the  judges  to 
make  construction  greater,  than  that  was  left  by  the  statute  of  25  E.  3. 

These  resolutions  being  made  and  settled  we  must  acquiesce  in 
Ihem  ;  but  in  my  opinion,  if  new  cases  happened  for  the  future,  that 
have  not  an  express  resolution  in  point,  nor  are  expressly  within  the 
words  of  25  E.  3.  tho  they  may  seem  to  have  a  parity  of  reason,  it  is 
the  safest  way,  and  most  agreeable  to  the  wisdom  of  the  great  act  of 
25  E.  3.  first  to  consult  the  parliament  and  have  their  declaration, 
and  to  be  very  wary  in  multiplying  constructive  and  interpretative 
treasons,  for  we  know  not  where  it  will  end. 

But  particular  instances  will  best  illustrate  this  whole  learning, 
which  I  shall  subjoin,  tho  somewhat  promiscuously,  as  they  occur  to 
my  memory. 

A  conspiring  or  compassing  to  levy  war  is  not  a  levying 
r  133  ]  war  within  this  act,  unless  the  war  be  levied;  this  appears, 
Co.  P.  C.  p.  9.  and  also  by  those  many  acts  of  parliament 
above-mentioned,  which  were  but  temporary  and  limited  to  continue 
during  the  life  of  the  king  or  queen,  whereby  it  is  specially  enacted, 
that  such  compassing  to  levy  war  shall  be  treason ;  which  needed 
not  have  been,  if  it  had  been  treason  by  the  statute  of  25  E.  3. 
Vide  1  4-  2  P.  <5'  M.  cajJ.  10.  1  Eliz.  cap.  5.  13  Eliz.  cup.  1.  13 
Car'.  2.  cap.  1. 

And  therefore  in  the  case  of  Robert  Burton  and  others,  that  con- 
spired to  assemble  themselves  and  pull  down  inclosures,  and  to  gain 
arms  at  the  lord  Norris^s  house,  and  to  arm  themselves  for  that  pur- 
pose, Co.  P.  C.  10.  they  iwere  indicted  and  attainted  purely  upon  the 
statute  of  13  Eliz.  cap.  1.  whereby  conspiring  to  levy  war  is  made 
treason. 

But  if  divers  conspire  to  levy  war,  and  some  of  them  actually  levy 
it,  this  is  high  treason  in  all  the  conspirators,  because  in  treason  all 
are  principals,  and  here  is  a  war  levied. (e) 

If  divers  persons  levy  a  force  of  multitude  of  men  to  pull  down  a 
particular  inclosure,  this  is  not  a  levying  of  war  within  this  statute, 
but  a  great  riot;  but  if  they  levy  war  to  pull  down  all  inclosures,  or 
to  expulse  strangers,  or  to  remove  counsellors,  or  against  any  statute, 
as  namely  the  statute  of  Labourers,  or  for  inhansing  salaries  and 
wages,  this  is  a  levying  war  against  the  king,  because  it  is  generally 
against  the  king's  laws,  and  the  otfenders  take  upon  them  the  refor- 
mation, which  subjects  by  gathering  power  ought  not  to  do. [4]  Co. 
P.  C.  p.  9,  10.  Vide  the  act  >3  &  4  ^.  6.  cap.  5.  "  If  any  to  the  number 
of  twelve  shall  intend,  go  about,  practise,  or  put  in  ure  by  force  to 
alter  the  religion  establiyhed  by  law,  or  any  other  laws,  and  depart 

(e)  Co.  P.  C.p.  d.     Kelyng.p.  19. 

[4]  Post.  219,  bamaree's  case,  8  St.  Tr.  218.  Purchase's  case,  id.  267.  4  Bl.  C'om.'&i. 
Mr.  Luders  iirfres  that  none  of  tlicso  acts  can  be  treason  by  a  fair  construction  of  tiie 
Slat.  25  Edw.  3.  p.  &2  el  seq. 


HISTORIA  PLACITORUM  CORONA.  133 

not  within  an  hour  after  proclamation,  or  after  that  shall  wilfully 
in  a  forcible  manner  attempt  to  put  in  ure  the  things  above  specified, 
then  it  is  high  treason." 

If  men  levy  war  to  break  prisons  to  deliver  one  or  more  particular 
persons  out  of  prison,  wherein  they  are  lawfully  imprisoned, 
unless  such  as  are  imprisoned  for  treason;  this  upon  advice  [  134  ] 
of  the  judges  upon  a  special  verdict  found  at  the  Old  Bailey, 
was  ruled  not  to  be  high  treason,  but  only  a  great  riot  1668,  but  if  it 
were  to  break  prisons,  or  deliver  persons  generally  out  of  prison,  this 
is  treason,  Co.  P.  C.  p.  9. 

There  was  a  special  verdict  found  at  the  Old  Bailey,  anno  20  Car. 
II.,(/)  that  ^.  B.  and  C.  with  divers  persons  to  the  number  of  an 
hundred  assembled  themselves  rnodo  gnerrino  to  pull  down  bawdy- 
houses,  and  that  they  marched  with  a  flag  upon  a  staff,  and  weapons, 
and  pulled  down  certain  houses  in  prosecution  of  their  conspiracy: 
this  by  all  the  judges  assembled,  except  one, (o-)  was  ruled  to  be  levy- 
ing of  war,  and  so  high  treason  within  this  statute  ;  and  accordingly 
they  were  executed. 

But  the  reason  that  made  the  doubt  to  him  that  doubted  it,  was 
1.  Because  it  seemed  but  an  unruly  company  of  apprentices,  among 
whom  that  custom  of  pulling  down  bawdy-houses  had  long  obtained, 
and  therefore  was  usually  repressed  by  officers,  and  not  punished  as 
traitors.  2.  Because  the  finding  to  pull  down  bawdy-houses  might 
reasonably  be  intended  two  or  three  particular  bawdy-houses,  and  the 
indefinite  expression  should  not  in  materia  odioscl  be  construed  either 
universally  or  generally.  And  3.  Because  the  statute  of  1  Mar.  cap. 
12.  though  now  discontinued  makes  assemblies  of  above  twelve  per- 
sons and  of  as  high  a  nature  only  felony,  and  that  not  without  a  con- 
tinuance together  an  hour  after  proclamation  made;  as  namely  an 
assembly  to  pull  down  bawdy-houses,  burn  mills  or  bays,  or  to  abate 
the  rents  of  any  manors,  lands  or  tenements,  or  the  price  of  victuals, 
corn  or  grain  ;  or  if  any  person  shall  ring  a  bell,  beat  a  drum,  or  sound 
a  trumpet,  and  thereby  raise  above  the  muiiber  of  twelve  for  the  pur- 
poses aforesaid,  which  are  raised  accordingly  and  do  the  fact,  and 
dissolve  not  within  an  hour  after  proclamation,  or  that  shall  convey 
money,  harness,  artillery,  it  is  enacted  to  be  felony ;  and  if  any  above 
the  number  of' two,  and  under  twelve,  do  practise  with  force  of 
arms  unlawfully,  and  of  their  own  authority  to  kill  any  of  the  queen's 
subjects,  to  dig  up  pales,  throw  down  inclosures  of  parks, 
pull  down  any  house,  mill,  or  burn  any  stack  of  corn,  or  [  135  1 
abate  rents  of  manors,  lands  or  tenements,  or  price  of  corn 
or  victual,  and  do  not  depart  within  an  hour. after  proclamation, 
and  continue  to  attempt  to  do  or  put  in  ure  any  of  the  things  above- 
mentioned,  they  are  to  have  a  year's  imprisonment. 

And  the  statute  of  3  &  4  E.  6.  cap.  5.  is  to  the  same  purpose,  only 
if  the  number  of  forty,  or  above,  come  together  to  do  such  acts  as 

(/)   V\de  Kehpg,  p.  70.  ^-c. 

ig)  Tliis  was  our  author  himself.     Vide  Kelyng,  75. 

VOL.  I. — 16 


135  HISTORIA  PLACITORUM  CORONA. 

before,  or  any  other  felonious,  rebellious,  or  traiterous  acts,  and  con- 
tinue together  two  hours,  it  is  made  high  treason. (A) 

But  yet  the  greater  opinion  obtained,  as  it  was  fit;  and  these  ap- 
prentices had  judgment,  and  some  of  them  were  executed,  as  for  high 
treason. 

Yet  this  use  may  be  made  of  those  statutes :  1.  That  there  may  be 
several  riots  of  a  great  and  notorious  nature,  which  yet  amount  not  to 
high  treason.  2.  But  again,  those  acts  and  attempts  possibly  might 
not  be  general,  but  might  be  directed  only  to  some  particular  instances, 
as  for  the  purpose  not  to  pulldown  all  houses  or  mills,  but  some  spe- 
cial ones,  wliich  they  thought  offensive  to  them;  nor  to  abate  the 
rents  of  all  manors,  but  of  some  particular  manor,  whereof  they  were 
tenants;  nor  to  make  a  general  abatement  of  the  prices  of  victuals  or 
corn,  but  in  some  particular  market,  or  within  some  precinct;  and  so 
crosseth  not  the  general  learning  before  given  of  constructive  treason. 
3.  It  seems  by  that  act  also,  they  did  not  take  the  bare  assembly  to 
that  intent  to  be  a  sufficient  overt-act  of  levying  of  war;  that  was 
but  an  attempt  and  putting  in  ure,  unless  they  had  actually  begun 
the  execution  of  that  intention,  going  aboiU,  practising  or  putting  in 
ure;  for  this  act  puts  a  difference  between  the  same  and  the  doing 
thereof. 

In  the  parliament  of  20  E.  1.  now  printed  in  Mr.  Ryley.p.  77.  it 
appears  there  arose  a  private  quarrel  between  the  earls  of  Gloucester 
and  Hereford,  two  great  lords  marchers;  and  hereupon  divers  of  the 
earl  of  Gloucester's  party  with  his  consent  cum  multitudine 
r  136  1  tam  equiium  quam  peditum  exierunt  de  terra  ipsius  comitis 
de  Morgannon  cum  vexillo  de  armis  ipsius  comitis  expli- 
cato  versus  terram  comitis  Heref  de  Brecknock,  &  ingressi  fuerunt 
terram  illam  per  spatium  duarum  leucarum,  &  iilam  deprsedati  fue- 
runt, &  bona  ilia  depra3data  usque  in  terram  dicti  comitis  Glocestrix 
adduxerunt,  and  killed  many,  and  burnt  houses  and  committed  divers 
outrages;  and  the  like  was  done  by  the  earl  of  Hereford  and  his 
party  upon  the  earl  of  Gloucester:  they  endeavoured  to  excuse  them- 
selves by  certain  customs  between  the  lords  marchers;  by  the  judg- 
ment of  the  lords  in  parliament  their  royal  franchise'  were  seised  as 
forfeited  during  their  lives,  and  they  committed  to  prison,  till  ran- 
somed at  the  king's  pleasure. 

Altho  here  was  really  a  war  levied  between  these  two  earls,  yet 
in  as  much  as  it  was  upon  a  private  quarrel  between  them,  it  was 
only  a  great  riot  and  contempt,  and  no  levying  of  war  against  the 
king;  and  so  neither  at  common  law,  nor  within. the  statute  o{ 25  E. 
3.  if  it  had  been  then  made,  was  it  high  treason. 

It  appears  by  IValsingham  sub  anno  1403.  a  great  rebellion  was 
raised  against  Henry  W.  by  Henry  Percy  son  of  the  earl  o[  North- 
timberland  and  others:  the  earl  gathered  a  great  force,  and  actually 
took  part  with  neither,  but  marched  with  his  force,  as  some  thought, 
towards  his  son,  and,  as  others  thought,  towards  the  kiugpro  redinte- 

(/t)  See  also  1  Geo.  I.  cap.  5. 


HISTORIA  PLACITORUM  COROx\.^.  136 

grando  pacts  negolio;  he  was  hindered  in  his  march  by  the  earl  of 
fFesfmorehind  and  returned  to  his  house  at  fVerkworth;  the  king 
had  the  victory;  the  earl  petitioned  the  king;  the  whole  fact  was 
examined  in  parliament,  Rot.  Pari.  5  H.  4.  n.  12.  The  king  de- 
manded the  opinion  of  the  judges  and  his  counsel  touching  it:  the 
lords  protest  the  judgment  belongs  in  this  case  to  them;  the  lords  by 
the  king's  command  take  the  business  into  examination,  and  upon 
view  of  the  statute  of  25  E.  3.  and  the  statute  of  Liveries  "  Adjuge- 
rent,  qe  ceo,  qe  fuit  fait  par  le  counte,  nest  pas  treason,  ne  felony,  raes 
trespass  tantsolement,  pur  quel  trespass  le  dit  counte  deust  faire  fine 
&  ransom  a  volunte  du  roy ;"  but  Henry  the  son  was  attaint  of 
treason. 

It  appears  not  what  the  reason  of  that  judgment  was, 
whether  they  thought  it  only  a  compassing  to  levy  war,  and  P  137  ~\ 
no  war  actually  levied  by  him,  because  not  actually  joined 
with  his  son;  or  whether  they  thought  his  intention  was  only  to 
come  to  the  king  to  mediate  peace,  and  not  to  levy  a  war,  nor  to  do 
him  any  bodily  harm;  that  it  was  indeed  an  offense  in  him  to  raise 
an  army  without  the  king's  commission,  but  not  an  offense,  of  high 
treason,  because  it  did  not  appear  that  he  raised  arms  to  oppose  the 
king,  but  possibly  to  assist  him;  but  whatever  was  the  reason  of  it, 
it  was  a  very  mild  and  gentle  judgment,  for  the  earl  was  doubtful  of 
a  more  severe  judgment :  no?«,  he  returns  thanks  to  the  lords  and 
commons  de  lour  bone  &)-  entyre  coers  a  lui  monslre,  and  thanks  the 
king  for  liis  grace.- 

The  clause  in  the  statute  of  25  E.  3.  If  any  man  ride  armed 
covertly  or  secretly  with  men  of  arms  against  any  other  to  slay,  rob, 
or  take  him,  or  to  detain  him,  till  he  hath  made  fine  or  ransom,  or 
have  his  deliverance,  it  is  not  in  the  mind  of  the  king  or  his  council, 
that  in  such  case  it  shall  be  judged  treason,  but  shall  be  judged 
»felony  or  trespass  according  to  the  laws  of  the  land  of  old  times  used, 
and  according  as  the  case  requireth;  and  if  in  such  case  or-other 
like(«)  before  this  time  any  judges  have  judged  treason,  and  for  this 
cause  the  lands  and  tenements  have  come  to  the  king's  hands  as  for- 
feited, the  chief  lords  of  the  fee  shall  have  the  escheat. 

This  declares  the  law,  that  a  riding  armed  with  men  of  arms  upon 
a  private  quarrel  or  design  against  a  common  person  is  not  a  levying 
of  war  against  the  king  ;(/t)  and  the  especial  reason  of  the  express 

(i)  Vide  simile  H.  26.  E.  3.  coram  re.ge.  Rot.  30.  Rex.    Hale. 

This  case  was  in  the  county  of  Essex,  and  was  no  more  than  this;  Sir  John  Fitzwau- 
ter  and  IVilliam  Baltrip,  his  steward,  <SfC.  were  presented  by  juries  of  divers  liundreds  for 
taking'  men  by  force,  and  detaining  them  till  they  paid  fines  for  their  ransom,  for  exacting' 
and  extorting  money  from  others,  and  for  several  great  and  enormous  riots,  misdemeanors 
and  trespasses  in  the  ceunty  of  Essex,  attractando  sibi  regalem  pofestalem,  upon  which. 
Sit  John  Fi<2ica«ter  surrendered  himself,  and  was  committed  to  the  Tower  oi'  London,  and 
Baltrip  was  outlawed,  who  afterwards  pleaded  the  king's  pardon  pro  feloniis,  conspira- 
tiOTie,  manutcnenlia  Sf  transsressionibus prcedictis,  necnon  pro  iitlagariis  occasione pramis- 
sorum  in  ipsum  promulgalis,  upon  which  he  was  discharged  sine  die. 

(k)  Co.  P.  C.  p.iO. 


138  HISTORIA  PLACITORUM  CORONA. 

adding  of  this  clause  seems  to  be  in  respect  of  that  judgment  of  trea- 
son given  against  Sir  Johii  Gerberge,  Trin.  21,  E.  3.  Hot.  23.  Rex. 
and  at  large  before  mentioned,  chirp.  11.  which  judgment  is  in  etfect 
repealed  by  this  act. 

It  appears  by  Sir  F.  Moore's  Rep.  n.  849. (/)  the  earl  of  Essex  was 
arraigned  and  condemned  for  high  treason  before  the  lord  high 
steward,  whereupon  it  was  resolved  by  the  justices,  1.  That  when 
the  queen  sent  the  lord  keeper  of  the  great  seal(m)  to  him,  command- 
ing him  to  dismiss  the  armed  persons  in  his  house  and  to  come  to  her, 
and  he  refused  to  come,  and  continued  the  arms  and  armed  persons 
in  his  house,  that  was  treason.  2.  That  when  he  went  with  a  troop 
of  captains  and  others  from  his  house  in  the  city  of  London,  and 
there  prayed  aid  of  the  citizens  in  defense  of  his  life,  and  to  go  with 
him  to  the  queen's  court  to  bring  him  into  the  queen's  presence  with 
a  strong  hand,  so  that  he  might  be  powerful  enough  to  remove  cer- 
tain of  his  enemies,  that  were  attendant  on  the  queen,  this  was  high 
treason,  because  it  tends  to  a  force  to  be  done  upon  the  queen,  and  a 
restraint  of  her  in  her  house;  and  the  fact  in  London  was  actual 
rebellion,  tho  he  intended  no  hurt  to  the  person  of  the  queen.  3.  That 
the  adherence  of  the  earl  of  Southampton  to  the  earl  of  Essex  in 
London,  tho  he  did  not  know  of  any  other  purpose  than  of  a  private 
quarrel,  which  the  earl  oil  Essex  had  against  certain  servants  of  the 
queen,  was  treason  in  him,  because  it  was  a  rebelhon  in  the  earl  of 
Essex.  4.  That  all  they,  that  went  with  the  earl  of  Essex  from  Essex- 
house  to  London,  whether  they  knew  of  his  intent  or  not,  were 
traitors,  whether  they  departed  upon  the  proclamation  or  not ;  but 
those,  that  suddenly  adhered  to  him  in  London,  and  departed  upon 
the  proclamation  made,  were  within  the  proclamation  to  be  par- 
doned :  there  were  other  points  resolved  touching  the  manner  of  his 
trial,  whereof  hereafter. 

The  whole  history  of  Essex  his  treason  and  the  proceeding  there- 
upon is  set  forth  at  large  by  Camden  anno  44  Eliz.  p.  604.  <^'  seqnen- 
iibus,  wherein  the  charge  of  his  indictment  appears  to  be, 
£139]  that  he  and  his  accomplices  had  conspired  to  deprive  the 
queen  of  her  crown  and  life,  having  consulted  to  surprize 
the  queen  in  the  court ;  and  that  they  had  broken  out  into  open  re- 
bellion by  imprisoning  the  counsellors  of  the  realm,  by  stirring  up  the 
Londoners  to  rebellion  by  tales  and  fictions,  by  assaulting  the  queen's 
faithful  subjects  in  the  city,  and  defending  the  house  against  the 
queen's  forces;  so  that  the  great  part  of  the  indictment  was  compass- 
ing the  queen's  death,  and  the  rest  of  the  charge  were  the  overt-acts, 
which  was  treason  within  the  statute  of  25  E.  3.  with  which  my 
lord  Coke  agrees,  P.  C.  p.  12. 

If  divers  persons  levy  war  against  the  king,  and  others  bring  them 
relief  of  victuals /?ro  thnore  mortis,  c^*  recesserunt  quam  citd  potue- 
runt,  this  was  adjudged  not  to  be  a  levying  of  war,  because  pro 
timore  mortis;  quvere,  if  the  same  law  be  in  case  of  marching  with 

(Z)  p.  620.  (m)  And  others  of  her  council. 


HISTORIA  PLACITORUM  CORONA.  139 

them  in  their  company  for  fear  of  death. [5]  Co.  P.  C.p.  10.  vide 
Slip.  crrp.  8.  Mich.  2\' E.  3  Rot.  101.  Line,  coram  rege.  lUi,  qui 
£oacti  fnerunt  ad  denarios  recipiendos  &  similiter  coacti  juravernnt, 
dimittuntur  per  curiam  per  manncaptionem,  quia  sic  in  personis  ipso- 
rnm  nihil  mah  reperitur,  in  case  of  a  great  riot,  not  unlike  a  levying 
of  war,  for  which  they  were  indicted  of  treason. 

Rot.  Par.  17  R.2.  n.  20.  upon  the  complaint  of  the  diikes  of  ^9giii- 
tain  and  Gloucester,  shewing  that  Thomas  Talbot  and  others  his 
adherents  by  confederacy  between  them  fauxment  conspirerent  pur 
tuer  les  dits'ducs  uncles  le  roy  &  autres  persones  grants  de  realme,  & 
pur  accomplyer  le  malice  susdit  le  dit  Thomas  &  les  autres  mistrent 
tout  lour  poyar,  come  notoirement  est  conus,  &  le  dit  Thomas  ad  en 
grand  party  confesse,  en  anietuisment  des  estats  &  de  loys  de  vostre 
realme,  &  sur  ceo  firent  divers  gents  lever  armes,  &  arrayes  a  feire 
de  guerre  en  assembles  &  congregations  a  tres  grant  &  liorrible  num- 
ber en  divers  parties  en  les  countie  de  Cestre,  and  pray  that  it  may 
be  declared  in  this  parliament  the  nature,  pain  and  judgment  of  this 
otfense:  the  conclusion  whereof  was  thus: 

"  Est  avys  au  roy  &  a  les  seigniors  de  cest  parlement  en  droit  de 
mesne  la  bille  touchant  Thomas  Talbot,  que  la  matter  contenus  en 
la  dite  bill  est  overt  &  haut  treason,  &  touche  la  person  du 
roy  &  tout  son  realme,  &  pur  treason  le  roy  &  touts  les  seig-  [^  140  ~\ 
neurs  snsdits  adjuggent  &  declarant ;"  and  thereupon  writs 
of  proclamation  for  his  appearance  in  the  king's  bench  are  ordered 
to  issue  for  his  appearance  in  one  month,  or  otherwise  to  be  attaint 
of  treason  :(?i)  vide  Pas.  17  R.  2  B.  R.  Rot.  16.  Rea-.  Writs  of  pro- 
clamation issued  accordingly  to  the  sheritfs  of  Yorkshire  and  Derby- 
shire, and  the  sheriffs  returned  non  est  inventus;  Talbot  afterwards 
came  and  rendered  himself,  and  was  committed  to  the  Tower,  and 
afterwards  a  Supersedeas  came  for  his  enlargement.(o) 

But  this  declaration  being  only  by  the  king  and  house  of  lords  is 
not  a  conclusive  or  a  sufficient  declaration  of  treason  according  to  the 
purview  of  this  statute,  but  yet  it  was  a  real  levying  of  war  against 
the  king,  because  done  more  guerrino  and  by  people  arrayed  de  fet 
de  guerre, as  in  Bensted^s  case  hereafter  mentioned;  but  had  it  been 
a  bare  conspiracy,  it  had  not  been  treason,  as  appears  by  the  special 
statute  of  3  H.  7.  cap.  14.  whereby  a  conspiracy  to  kill  the  king 

(n)  And  all  persons,  that  shall  receive  the  said  Sir  Thomas  Talbot  within  the  realm 
of  England,  after  the  said  month  elapsed  from  the  time  of  the  said  proclamation,  are 
declared  guilty  of  high  treason  upon  conviction  of  such  harbouring  or  receiving. 

(o)  The  Supersedeas  was  not  expressly  for  his  enlargement,  Sed  quod  cuicunq  :  proces- 
sui  versus  ipsum  Thomam  Talbot  ex  causis  pradictis  ulterius  faciendo  supersedeanl,  quo- 
ousque  aliud  a  rege  inde  habuerint  in  mandutis. 

[5]  It  seems  that  it  would.  But  the  fear  of  having  houses  burnt  or  goods  spoiled,  is 
no  excuse  in  the  eye  of  the  law  for  joining  and  marching  with  rebels.  The  only  force 
that  doth  excuse,  is  a  force  upon  the  person,  and  present  fear  of  death  ;  and  this  force 
and  fear  must  continue  all  the  time  the  party  remains  with  the  rebels.  It  is  incumbent 
on  every  man  who  makes  force  his  defence,  to  show  an  actual  force,  and  that  he  quitted 
the  service  as  soon  as  he  could.  Per  Lee,  C.  J.,  McGrOwlhcr's  case,  Fost.  14.  216. 
1  Ea8t,  P.  C.  70.     U.  S.  V.  Vigol,  2  Dall.  347. 


140  HISTORIA  PLACITORUM  CORONA. 

without  an  overt  act,  (for  then  it  were  treason  within  the  statute  of 
25  E  3.)  or  a  conspiracy  to  kill  any  of  his  privy  council  and  certain 
great  officers,  tho  the  event  followed  not,  is  made  felony. 

See  for  instances  of  very  great  riots  with  multitudes  of  persons 
modo  gicerri/io  arraiati,  which  yet  amounted  not  to  high  treason, 
because  upon  particular  quarrels  and  differences  between  private 
persons.  Claus.  5  E.  2  M.  4.  inter  Griffinum  de  Pole  &  Johannem 
de  Cherleton  pro  castro  de  Pole.  Pat.  S  E.  4.  part  1.  n.  7.  dors. 
between  the  citizens  and  bishop  of  Norwich.{p)  Rot.  Pari.  5  R.  2. 
n.  45.  between  the  town  and  university  of  Cambi^idge,  Rot.  Pari. 
11  H.  A.  11.  37.  <5'  sequentibits,  between  Hugh  de  Erdeswick  and 
others  touching  the  castle  of  Bothall.  Rot.  Pari.  13  H.  4.  n.  12.  be- 
tween the  lord  Ross  Sir  Robert  Tyrrhyt  touching  Turbary  in 
JVrovghtly.  Rot.  Pari.  4  H.  5.  n.  15.  between  Robert 
[  141  ]  Whiltingfon  and  Philip  Lingdon  and  others.  H.  26  E.  3.' 
Rot.  30.     Rex  Fitzivauter^s  c^d.SQ.{q) 

All  which,  tho  they  were  enormous  riots,  and  done  more  guerrinOf 
yet  being  private  and  particular  quarrels,  not  much  unlike  that  be- 
tween the  earls  of  Gloucester  and  Hereford,  did  not  amount  to  high 
treason,  but  contempts,  riots;  or,  if  death  ensued,  felony,  as  the  case 
required. [6] 

Bnt  going  in  a  warlike  manner  with  drums  and  arms  to  surprize 
the  arclibishop  of  Canterbury.,  who  was  a  privy  counsellor,  it  being 
witli  drums  and  a  multitude  (as  the  indictment  was)  to  the  number 
of  three  hundred  persons,  was  ruled  treason  by  all  the  judges  of 
England,  •Awd,\\\Q,  offenders  had  judgment  accordingly;  and  at  the 
same  time  by  ten  of  the  judges  it  was  agreed,  that  the  breaking  of 
prison,  where  traitors  were  in  durance,  and  causing  them  to  escape 
was  treason,  altho  the  parties  did  not  know  that  tiiere  were  any 
traitors  there,  upon  the  case  of  1  H.  6.  5.  b.  and  so  to  break  a  prison 
where  felons  are,  whereby  they  escape,  is  felony  without  knowing 
them  to  be  imprisoned  for  such  offense.  P.  16  Car.  Croke,  Thomas 
Bensted''s  case.(r) 

The  case  of  Sir  John  Oldcastle  for  levying  of  war  against  the  king 
is  entered  Rot.  Pari.  5  //.  5.  n.  \\. 

The  twenty-fifth  of  September  an7io  domini  1413,  Thomas  arch- 
bishop of  Canterbury  the  pope's  legate  by  his  sentence  definitive 

(p)  Tliis  is  not  to  be  found  among'  tlie  records. 

{q)  Nicholas  Bnindish  and  otlicrs  to  the  number  of  one  hundred  were  sent  by  Sir 
John  Filzwauter  anncd  platis,  pladiis,  liokelariis,  arcubus  «^  safrjttis  ad  modum  guerr<B 
to  seize  and  take  l/oves,  asiiins,  Sfc.  of  Thomas  Hubert  in  He rlawr  upon  tiie  lands  of  the 
said  Thomas,  qiias  tenuit  de  alits  dnmxnis  i^-  nihil  de  ipso  Johanne  Fitzwauter ;  accor- 
din<,'Iy  tiiey  did  so,  and  curried  them  away  to  manors  belonging  to  the  said  Sir  John; 
but  neither  this  riot,  nor  any  other  the  facts,  whicli  lie  or  his  accomplices  were  indicted 
for,  were  conceived  to  amount  to  treason,  since  none  of  them  were  arraigned  of  more 
than  felony;  vide  supra  in  notis,  p.  137. 

(r)  Cro.  Car.  583.   W.  Jones  455. 

[6]  For  an  account  of  these  private  wars  which  were  so  prevalent  during  the  early 
feudal  ages,  see  Robertson's  Charles  V.  vol,  I.  45.  286. 


HISTORIA  PLACITORUiM  CORONA.  141 

declared  Sir  John  Oldcastle  lord  Cohham  an  heretic,  especially  in 
the  point  of  the  sacrament  of  the  eucharist  and  penance,  excommu- 
iiicaied  hitn,  relinquentes  ipsumex  nunc  tanquam  hxrelicumjudi- 
cio  sxcula7-i.{s) 

Hill.  1   //.  5.  Rot.  7.  inter  placita  regis,  Middlesex,  there  is  an 
indictment  against  him  before  certain  commissioners  o{  oyer 
and  terminer  of  London  and  Middlesex,  xe\\.uv\Q(\.  into  the   [  142  ] 
king's  bench  to  this  effect :(/) 

"  Quod  Johannes  Oldcastell  Ae  Coulyng  in  com'  Kane'  chivaler, 
&.  alii  lollardi  vulgariter  nnncnpati,  qui  contra  fidem  catholicam  di- 
versas  opiniones  liaereticas  &  alios  errores  manifestos  legi  catholicae 
repugnantes,  a  diu  est,  temerarie  tenuerunt  opiniones  &  errores  prse- 
dictos  manutenere,  aut  in  facto  minime  perimplere  valentes,  qnam 
diu  regia  potestas  &  tam  status  regalis  domini  nostri  regis,  qnuni 
status  &  officium  praelatiaj  dignitatis,  infra  regnuni  Snglise  in  pros- 
peritate  perseverarent ;  falso  &  proditorie  machinando  tam  statum 
regium  quum  statum  &  ofRcium  prtelatorum,  nee  non  ordines  religio- 
sorum  infra  dictum  regnum  Anglios  penitus  adnuliare  ac  dominuni 
nostrum  regem,  fratres  suos,  prselatos  &  alios  magnates,  ejusdem 
regni  interficere,  nee  non  viros  religiosos,  relictis  cultibus  divinis  & 
religiosis  observantiis,  ad  occupationes  mundanas  provocare  ;  &  tam 
ecclesias  cathedrales,  quam  alias  ecclesias  &  domos  religiosas  de  reli- 
qniis  &  aliis  bonis  ecclesiasticis  totaliterspoliare  acfunditus  ad  terram 
pxosternere,  &  dictum  Johannem  Oldcastell  regentem  ejusdem  regni 
consiituere,  &  quamplura  regimina  secundum  eorum  voluntatem  infra 
regnuni  prsedictum,  quasi  gens  sine  capite,  in  finaleni  destructionem 
tam  tidei  caiholicse  &  cleri,  quam  status  &  majeslatis  dignitatis  rega- 
lis, infra -idem  regnum  ordinare,  falso  &  proditorie  ordinaverunt  .& 
proposuerunt,  quud  ipsi  insimul  cum  quampluribus  rebellibus  don^ini 
regis  ignotis  ad  numerum  viginti  milhCim  hominum  de  diversis  parti- 
bus  regni  Anglise  modo  guerrino  arraiatis  privatim  insurgerent,  & 
die  Mercurii  proximo  post  festura  Epiphanise  domini  anno  regni  re- 
gis nunc  primo  apud  P^illam  &  parochiam  sancti  Egidii  extra  bar- 
ram  veteris  Templi  London  in  qnodam  magno  campo  ibidem  una- 
nimiier  convenirent  &  insimul  obviarent  pro  nefando  proposito  suo  in 
praimissis  perimplendo,  quo  quidem  die  Mercurii  apud  Vil- 
lum  &  parochiam  prsedictas  preedicti  Johannes  Oldcastell  &i  [  143  ] 
alii  in  hujusmodi  proposito  proditorio  perseverantes  praidic- 
tum  domiiium  nostrum  regem,  fratres  suos,  viz.  Thomam  ducem  Cla- 
rencix,  Johannem  de  Lancastre,  &  Humfridiim  de  Ltincastre,  nee 
noji  pra^lalos  &  magnates  praedictos  interficere,  nee  non  ipsum  domi- 
iium nostrum  regem  &  haeredes  suos  de  regno  suo  prasdicto  eshare- 
dare,  &.  pramissa  onniia  &  singula,  nee  non  quampkn^a  alia  mala  & 
iutolerabilia  facere  &  perimplere,  falso  &  proditorie  proposuerunt  &. 

(s)  Sec  Slate  Tr.  Vol  I.  p.  42, 

\t)  See  Ulate  '1\.  Vvl.W.  Appendix  p.  4.  Fox  in  Iiis  acts  and  monuments,  Vol.  T.  p. 
655.  brings  several  arjruments  to  prove  this  indictment  to  be  a  f  ir;rcd  one;  but  whatever 
the  indiclinent  was,  tliere  is  reason  sufficient  to  believe  tlic  pretended  conspiracy  was  so. 
See  liapiii's  history  sub  anno  141  i. 


143  HISTORIA  PLACITORUM  CORONiE. 

imaginaverurit,  &  ibidem  versus  campum  prsBdictiim  modo  guerriao 
arraiati  proditorie  modo  insurrectionis  contra  ligeantias  suas  equita- 
veriint  ad  debellaudum  dictum  dominum  nostrum  regem,  nisi  per 
ipsum  manu  forti  gratiose  impediti  faissent,  quod  quidem  indicta- 
mentum  dominus  rex  nunc  ceriis  de  causis  coram  eo  venire  fecit  ter- 

minandum Per  quod  prscceptum  fuit  vie'  quod  non  omitteret, 

&c.  quin  caperet  prasfatum  Johaiinem  Oldcastell,  si,  &c.  &  salvo, 
&c."  upon  this  indictment  removed  into  tlie  king's  bench  he  was 
outlawed. 

All  this  record  and  process  at  the  request  of  the  commons  was  re- 
moved into  parliament,  and  in  the  presence  of  the  citstos  re<(m, 
lords,  and  commons  was  read,  and  expounded  in  English  to  Sir  John 
Oldcasile,  and  it  was  demanded  what  he  could  say  why  execution 
should  not  be  done  upon  him  upon  that  utlary,  and  he  saying  nothing 
in  his  excuse  "  pur  que  agard  est  en  mesme  le  parlement  per  les 
seigneurs  avani  clits,  de  I'assent  de  le  dit  gardein,  &  la  pryer  suisdit, 
qe  le  dit  Joh?i,  come  traytoura  dieu  &  heretique  notoirement  approve 
&  adjugge,  come  peirt  per  un  instrument  I'archevesque  consue  ala 
dors  de  cest  roll  &  come  traytour  a  roy  &  son  roialme,  soil  amesne  a 
la  Ihwer  de  Londres,  &  d'illoeques  soit  treins  per  my  le  city  de 
Londres,  tanque  as  novel  surches  en  le  paroche  de  St.  Giles  hors  de 
la  baire  de  viel  Temple  de  Londres,  &  illoeques  soit  pendus,  &  ars 
pendant. "(^^) 

How  this  nobleman  was  pursued  by  the  ecclesiastics,  and 
r  144  "]  the  whole  story  is  set  down  by  IValsingham. 

That  which  1  observe  in  it  is,  1.  That  the  indictment  is  prin- 
cipally founded  upon  that  article  of  this  statute  of  compassing  the 
king's  death,  and  yet  the  overt-act  is  an  assembly  to  levy- war,  and 
actual  levying  of  war.  2.  Altho  this  indictment  is  not  expressly 
upon  this  clause  of  levying  of  war,  for  that  is  not  the  principal  charge 
of  the  indictment,  but  compassing  the  king's  death,  yet  the  marching 
with  a  great  army  to  St.  Giles'' s  modo  g^ierrino  arraiati  was  an  ex- 
press levying  of  war,  tho  there  were  no  blow  yet  struck. [7]  But  3. 
it  seems  their  first  meeting  to  contrive  Iheir-coming  to  St.  Gileses,  tho 
it  might  be  an  overt-act  to  compass  the  king's  death,  and  so.  treason 
within  the  first  clause  of  the  statute,  yet  was  not  an  actual  levyingof 
war,  and  so  not  treason  within  that  clause  of  the  statute ;  but 
their  actual  marching  in  a  body  modo  guerrino  &;  viodo  insurrec- 
tionis might  be  a  levying  of  war  within  the  statute.  4.  That  actual 
levying  of  war,  tho  it  be  a  treason,  upon  which  Oldcustle  might 
have  been  indicted,  yet  it  was  also  an  overt-act  to  serve  an  indict- 
meiit  for  compassing  the  king's  death,  as  hath  been  shewed  at  large 
before. 

If  there  be  an  actual  rebellion  or  insurrection,  it  is  a  levying  of 

(u)  The  autlior  of  the  triiil  of  Sir  Jnhn  OlJcaallc  says,  that  this  sentence  was  in  pur- 
suance of  an  act  of  parliament,  wiiich  appointed  tiiat  punislnnent  in  those  cases.  See 
State  Tr.   Vol.  I.  Ji.  4L>. 

[7]  Fost.  218.  Vaughan's  case,  5  St,  Tr.  17.  Salt.  G31. 


I 


HISTORIA  PLACITORUM  CORONiE.  144 

war  within  this  act;  and  by  the  name  of  levying  of  war  it  must  be 
expressed  in  the  indictment.  Co.  P.  C.  p.  10. 

And  in  Anderson'' s Rep.  part  2  n.  2.  after  Trinity-term  37  Eliz.{x) 
before  the  two  chief  justices,  master  of  the  rolls,  baron  Clerk  and 
Efvens,  the  case  was,  that  divers  apprentices  of  London  and  South- 
wark  were  committed  to  prison  for  riots,  and  for  making  proclamation 
concerning  the  prices  of  victuals,  some  whereof  were  sentenced  in  the 
star-chamber  to  be  set  in  the  pillory  and  whipt;  after  which  divers 
other  apprentices  and  one  Grant  of  Uxbridge  conspire  to  take  and 
deliver  those  apprentices  out  of  ward,  to  kill  the  mayor  of  London, 
and  to  burn  his  hoiise,  and  to  break  open  two  houses  near  the  Tower, 
where  there  were  divers  weapons  and  arms  for  three  hundred  men, 
and  there  to  furnish  themselves  with  weapons;  after  which  divers 
apprentices  devised  libels,  moving  others  to  take  part  with 
them  in  their  cLevices,  and  to  assemble  themselves  at  Bun-  [  145  l 
AzV/and  Tower-hill ;  and  accordingly  divers  assembled  them- 
selves at  Bun-hill,  and  three  hundred  at  the  Tower,  where  they  had 
a  trumpet,  and  one  that  held  a  cloak  upon  a  pole  in  lieu  of  a  flag, 
and  in  going  towards  the  lord  mayor's  house  the  sheriffs  and  sword- 
bearer  with  others  otfered  to  resist  them,  against  whom  the  appren- 
tices offered  violence. 

And  it  was  agreed  by  the  judges  referees,  that  this  was  treason 
wiihin  the  statute  of  13  Eliz.  for  intending  to  levy  war  against  the 
queen;  for  they  held,  that  if  any  do  intend  to  levy  war  for  any  thing, 
that  the  queen  by  her  laws  or  justice  ought  or  may  do  in  government 
as  queen,  that  shall  be  intended  a  levying  of  war  against  the  queen; 
and  it  is  not  material,  that  they  intended  no  ill  to  the  person  of  the 
queen,  but  if  intended  against  the  office  and  authority  of  the  queen, 
to  levy  war,  this  is  within  the  words  and  intent  of  the  statute,  and 
hereupon  Grant  and  divers  others  were  indicted  and  executed. 

And  eodem  libro  n.  49. (y)  the  case  of  Burton  mentioned  by  my 
lord  Coke,  P.  C.p.  10.  is  reported,  viz.  in  the  county  of  Oxford  di- 
vers persons  conspire  to  assemble  themselves,  and  move  others  to 
rise  and  pull  down  inclosures,  and  to  effect  it  they  determined  to 
go  to  the  lord  Norris's  house  and  others,  to  take  their  arms,  horses, 
and  other  things,  and  to  kill  divers  gentlemen,  and  thence  to  go  to  Lofi- 
don,  where  they  said  many  would  take  their  parts  ;  and  this  appeared 
by  their  confessions:  and  it  was  agreed,  1.  That  this  was  treason 
within  the  statute  of  13  Eliz.  for  conspiring  to  levy  war  against  the 
queen.  2.  But  not  within  the  statute  of  25  E.  3.  because  no  war 
was  levied,  and  that  statute  extended  not  to  a  conspiracy  to  levy 
war. 

^ota;  in  both  these  cases  there  was  a  conspiring  to  arm  them- 
selves as  well  as  to  assemble,  which  had  they  effected  and  so  assem- 
bled viore  guerrino,  it  had  been  a  war  levied,  atid  by  construction 
and  interpretation  a  war  levied  against  the  queen. 

If  any  with  weapons  invasive  or  defensive  doth  hold  and  f  146  "l 
defend  a  castle  or  fort  against  the  king  and  his  power,  this  is 

(r)  2  And.  4.  (j,)  2  And.  66. 

VOL.   I. — 17 


146  HISTORIA  PLACITORUM  CORONA. 

a  levying  of  war  against  the  king  within  this  act.     Co.  P.  C.  p.  10. 
Vide  the  statute  13  Eliz.  cup.  1  <§•  dicta  ibid  postea. 

There  is  a  great  difference  hetween  an  insurrection  upon  the  ac- 
count of  a  civil  interest  and  a  levying  of  war.[S] 

,/^.  recovers  possession  against  B.  of  a  house,  &c.  in  a  real  action, 
or  in  an  ejectione  Jirrnx,  and  a  writ  of  seisin  or  possession  goes  to 
the  sheriff,  B.  holds  his  house  against  the  slierilf  with  force,  and  as- 
sembles persons  with  weapons  for  that  purpose,  who  keep  the  house 
with  a  strong  hand  against  the  sheriff,  tho  assisted  with  the  pofise 
coniitatus:  this  is  no  treason  either  in  B.  or  his  accomj)lices,  but  only 
a  great  riot  and  misdemeanor;  the  like  is  to  be  said  touching  a  man 
that  keeps  possession  against  a  restitution  upon  an  indictment  of  for- 
cible entry. 

But  if  B.  either  fortifies  his  own  house  or  the  house  of 

r  *142  1  another  with  weapons  defensive  or  invasive  purposely  to 

make  head  against  the  king  and  to  secure  himself  against 

the  king's  regal  army  or  forces,  then  that  is  a  levying  of  war  against 

the  king. 

But  the  bare  detaining  of  the  king's  castles  or  ships  seems  no  levy- 
ing of  war  within  this  statute:  vide  infra  13  Eliz.  cap.  1  <§-  dicta 
^■6^V/e7n.[9] 

If  the  king's  lieutenant  in  a  time  of  hostility  or  rebellion  within  the 
realm  be  assaulted  upon  their  march  or  in  their  quarters  as  enemies, 
this  is  a  levying  of  war;  but  if  upon  some  sudden  falling  out  or  in- 
jury done  by  the  soldiers,  the  countrymen  rise  upon  them  and  drive 
them  out,  this  may  be  a  great  riot,  and  if  any  be  killed  by  the  assail- 
ants it  is  felony  in  them  ;  but  this  seems  not  a  levying  of  war  against 
the  king,  unless  there  be  some  traitorous  design  under  the  cover  of 
it :  and  clans.  26  E.  3.  mx.  24.  it  appears,  that  an  open  resistance  of 
the  justices  of  oyer  and  terminer  in  the  county  of  Surrey,  viz.  re- 
sistendo  justiciariis,  &  ipsos  justiciarios,  quo  minus  contenta  in  coni- 
missione  nostra  eis  inde  facta  exequi  &  facere  potuerunt,  impediendo, 
was  felony,  and  the  offenders  were  executed  for  the  same  as  felons. 

I  shall  conclude  this  matter  with  a  consultation  of  the 

[  *143  ]  judges,  where  I  was  present.     All  the  judges  except  J. 

Windham  and  J.   Atkins  were  assembled  by  my  lord 

keeper,  September  1675.  to  consider  of  this  case,  as  it  was  stated  in 

writing  by  the  attorney  general  in  manner  following: 

"  A  great  number  of  the  weavers  in  and  about  London  being 
offended  at  the  engine-looms  (which  are  instruments,  that  have  been 
used  above  these  sixty  years,)  because  thereby  one  man  can  do  as  much 
in  a  day,  as  near  twenty  men  without  them,  and  by  consequence  can 
afford  his  ribbands  at  a  much  cheaper  rate,  after  attempts  in  parlia- 
ment and  elsewhere  to  suppress  them  did  agree  among  themselves 
to  .rise  and  go  from  house  to  house  to  take  and  destroy  the  engine- 

[8]  Crirryinjj  off  or  destroyiiifj  tiic  kinfr's  stores,  provided  for  the  defence  of  the  king'- 
dom,  if  done  in  eonjunclioii  witit,  or  in  aid  of  rebels  or  enemies,  will  he  treason;  but 
Scots,  ifdorie  only  lor  lucre,  or  some  jtrivatc  malicious  motive.  1  East.,  V.  C.  66. 

['.)]  '-That  case  is  denied,"  per  Mnrshall,  C.  J.  2  Burr's  Trial,  224.  It  is  denied  by 
East,  1'.  C.  1  vol.  68.  Sec  also  Fast,  2VJ. 


HISTORIA  PLACITORUM  CORONA.  ^143 

looms;  in  pursuance  of  which  they  did  on  the  9th,  10th,  and  11th  of 
this  instant  v^up;ust  assemhle  themselves  in  great  numbers  at  some 
places  to  an  Imndred,  at  others  to  four  hundred,  and  at  others, 
particularly  at  St  nil  ford- Bow  to  about  fifteen  hundred. 

*'  Thev  did  in  a  most  violent  manner  break  open  the  houses  of 
many  of  the  king's  subjects,  in  which  such  engine-looms  were,  or 
were  by  them  suspected  to  be,  they  took  away  the  engines,  and 
making  great  fires  burnt  the  same,  and  not  only  the  looms,  but  in 
many  places  the  ribbands  made  thereby,  and  several  other  goods  of 
the  persons  whose  houses  they  broke  open;  this  they  did  not  in  one 
place  only, but  in  several  places  and  counties,  viz.  Middlesex,  London, 
Essex,  Kent,  and  Sitrrei/,  in  the  last  of  which,  viz.  at  Southwark 
tliey  stormed  the  house  of  one  Thomas  Byhhy,  and  tho  they  were 
resisted  and  one  of  them  killed  and  another  wounded,  yet  at  last  they 
forced  their  way  in,  took  away  his  looms  and  burnt  them  ;  the  value 
of  the  damage  they  did,  is  computed  to  several  thousand  pounds. 

<'  This  they  did  after  several  proclamations  made  and  command 
given  by  the  justices  of  peace  and  the  sheriffs  of  Middlesex  to  de- 
part, but  instead  of  obeying  they  resisted  and  affronted 
the  magistrates  and  officers:  It  is  true  they  had  no  war- [*144] 
like  arms,  but  that  was  supplied  by  their  number,  and  they 
had  such  weapons,  as  such  a  rabble  could  get,  as  staves,  clubs, 
sledges,  hammers,  and  other  such  instruments  to  force  open  doors. 

"There  was  this  further  evil  attending  this  insurrection,  that  the 
soldiers  and  officers  of  the  militia  were  so  far  from  doing  their  duty 
in  suppressing  them,  that  some,  tho  in  arms  and  drawn  up  in  com- 
panies, stood  still  looking  on  while  their  neighbours  houses  were 
broken  open  and  their  goods  destroyed,  others  incouraged  them,  and 
others,  to  whose  custody  some  of  the  oflenders,  who  were  taken, 
were  committed,  suffered  them  to  escape,  so  that  during  all  the  time 
of  the  tumult  little  or  nothing  was  done  to  suppress  them,  until  the 
lords  of  the  council  were  constrained  at  a  time  extraordinary  to 
assemble,  by  whose  directions  and  orders  as  well  to  the  civil  magis- 
trates, as  to  the  king's  guards,  they  were  at  last  quieted." 

Five  of  the  judges  seemed  to  be  of  opinion  that  this  was  treason 
witliin  the  act  of  25  E.  3.  upon  the  clause  of  levying  war  against 
the  king,  or  at  least  upon  the  clause  of  the  statute  of  13  Car.  2. 
cap.  l.[10.] 

1.  In  respect  of  the  manner  of  their  assembling,  who,  tho  they 
had  no  weapons  or  ensigns  of  war,  yet  their  multitudes  supplied  that 
defect,  being  able  to  do  that  by  their  multitudes,  which  a  lesser  num- 
ber of  armed  men  might  scarce  be  able  to  effect  by  their  weapons; 
and  besides,  they  had  staves,  and  clubs,  and  some  hammers  or 
sledges  to  break  open  houses,  and  accordingly  they  acted  by  break- 
ing open  doors  and  burning  the  engine-looms  and  many  of  the  wares 
made  by  them. 

2,  In  respect  of  the  design  itself,  which  was  to  burn  and  destroy 

[10]  Fost.  210. 


*144  HISTORIA  PLACITORUM  CORONA. 

not  the  single  engine-looms  of  this  or  that  particniar  person,  but 
engine-looms  in  general,  and  that  not  in  one  county  only, 

[[*1453  hut   in   sev^eral   comities,   and   so   agreeable   to    Burton's 
case. 
The  other  five  jndges  were  not  satisfied,  that  this  was  treason 

within  the  clause  of  25  E.  3.  against  levying  of  war,  nor  within  the 

statute  of  13  Car.  2.  for  conspiring  to  levy  war. 

1.  It  was  agreed,  thai  if  men  assemble  together  and  consult  to 
raise  a  force  inmiediately  or  directly  against  the  king's  persoji,  or  to 
restrain  or  depose  him,  whether  the  number  of  the  persons  were 
more  or  less,  or  whether  armed  or  unarmed,  tho  this  were  not  a  trea- 
son within  this  clause  of  the  statute  of  25  E.  3.  yet  it  was  treason 
within  the  first  clause  of  compassing  the  king's  death,  and  an  overt- 
act  sufficient  to  make  good  such  an  indictment,  tho  no  war  was  ac- 
tually levied;  and  with  this  accord  the  resolutions  before  cited, 
especiahy  that  of  the  insurrection  in  the  north  at  Farley  wood;(*) 
but  no  such  conspiracy  or  compassing  appears  in  this  case,  and  so 
that  is  not  now  in  question,  but  we  are  only  upon  a  point  of  con- 
structive or  interpretative  levying  of  war. 

2.  Here  is  nothing  in  this  case  of  any  conspiring  to  do  any  thing, 
but  what  they  really  and  fully  effected;  they  agreed  to  rise  in  multi- 
tudes to  burn  the  looms,  and  accordingly  they  did  it,  but  nothing  of 
conspiring  against  the  safety  of  the  king's  person,  or  to  arm  them- 
selves; therefore  if  what  they  did  were  not  a  levying  of  war  against 
the  king  within  the  statute  of  25  E.  3.  here  appears  no  conspiring 
to  levy  such  war  within  the  statute  of  13  Car.  2.  cap.  1.  for,  for 
what  appears,  all  was  done,  which  they  conspired  to  do. 

3.  It  seemed  very  doubtful  to  them,  whether  in  the  manner  of  this 
assembling  it  was  any  levying  of  war,  or  whether  it  were  more  than 

a  riot,  for  in  all  indictments  of  this  kind  for  levying  af  war 
r*146l  it  is  laid,  that  they  were  more  guerrino  arraiati,  and  upon 

the  evidence,  that  they  were  assembled  in  a  posture  of  war 
nrmis  offensivis  <5'  de/ensivis,  and  sometimes  particular  circum- 
stances also  proved  or  found,  as  banners,  trumpets,  drums,  &c.  and 
where  they  were  indicted  for  conspiring  only  to  levy  war,  yet  there 
was  this  circumstance  accompanied  it,  viz.  a  confederacy  to  get  arms 
and  arm  themselves,  as  in  GranVs  case,  and  Burlon^s  case. 

4.  It  seemed  very  doubtful  to  them,  whether  this  design  to  burn 
engine-looms  were  such  a  design,  as  would  make  it  a  levying  of  wax 
against  the  king,*[ll]  for  it  was  not  like  the  designs  of  altering 

(*)    Vide  supra  p.  120. 

*  By  12  Geo.  1.  cap.  '.H.  "If  any  person  shall  wilfully  break  any  tools  used  in  the 
•wodlleii  manufacture,  not  having-  the  consent  of  the  owner,  or  shall  break  or  enter  by 
force  into  any  liousc  or  shop  by  night  or  by  day  for  such  purpose,  he  shall  be  adjudged 
guilty  of  felony  without  benefit  of  clergy. 

[11]  By  the  7^8  Geo.  4.  c.  30.  «.  3.  it  is  made  felony,  punishable  with  transportation 
tfr  ini[>risonment,  to  damage  or  destroy  any  silk,  woolen,  linen,  or  cotton  goods,  being  in 
the  loom  or  frame,  &c.  or  to  destroy  or  damage  any  loom,  frame,  machine,  &c.  or  to 
enter  by  forCe  into  any  house,  shop,  building,  &c.  with  intent  to  commit  any  of  the  said 
ofFencoH.  R.  V.  Tacey,  R.  Sf  R.  C.  C.  452.  R.  v.  Hill,  id.  483.  R.  v.  Ashton,  2  B.  ^ 
Ad.  750. 


niSTORIA  PLACITORUM  CORONA.  *146 

relision,  laws,  pulling  down  inclosures  generally,  as  in  Biirton^s 
case,  nor  to  destroy  any  trade,  but  only  a  particular  quarrel  and 
grievance  between  men  of  the  same  trade  against  a  particular  engine, 
that  they  thought  a  grievance  to  them,  which,  tho  it  was  an  enor- 
mous riot,  yet  it  would  be  difficult  to  make  it  treason.  Vide  statutes 
S  H.  6.  cap.  27.  9  H.  6.  cnp.  5.(t) 

Many  of  them  therefore  concluded,  that  if  Mr.  Attorney  should 
think  fit  to  proceed  as  for  a  treason,  the  matter  might  be  specially 
found  and  so  left  to  farther  advice,  or  rather  that  according  to  the 
clause  of  the  statute  of  25  E.  3.  the  declarative  judgment  of  the  king 
and  both  houses  of  parliament  might  be  had,  because  it  was  a  new 
case  and  materially  differed  from  other  cases  of  like  nature  formerly 
resolved. 

Upon  the  conclusion  of  this  debate  we  all  departed,  and  Mr.  Attor- 
ney upon  consideration  of  the  whole  matter,  it  seems,  thought  fit  to 
pi-oceed  for  a  riot,  and  caused  many  of  them  to  be  indicted  for  riots, 
for  which  they  were  convicted  and  had  great  fines  set  upon  them, 
and  were  committed  in  execution  and  adjudged  to  stand  upon  the 
pillory. 

Touching  the  laws  of  treason  in  Ireland,  by  the  statute  of  [  147  j 
IS  H.  6.  cap.  3.  levying  horse  or  foot  upon  the  king's  sub- 
jects against  their  will  shall  be  treason  ;  this  they  call  cessing  of  sol- 
diers upon  men,  and  hath  been  often  done  by  the  lieutenants  or 
deputies  of  Ireland  by  consent  of  the  council  in  some  cases. 

Among  many  cumulative  treasons  charged  upon  the  late  earl  of 
Strafford  the  king's  deputy  in  Ireland,  this  one  thing  of  cessing  of 
soldiers  upon  the  king's  subjects  in  Ireland  was  the  chief  particular 
treason  charged  upon  him. 

It  was  insisted  upon  for  the  earl's  defence,  that  by  the  statute  of 
10  H.  7.  in  Ireland,  cap.  22.  called  Foyninsi's  law,  all  the  statutes  of 
England  are  at  once  enacted  to  be  observed  in  Ireland;  and  there- 
fore the  statute  of  25  E.  3.  declaring  treasons,  and  the  statute  of  1  H. 
4.  cap.  10.  enacting,  that  nothing  shall  be  treason  but  what  was  with- 
in that  statute,  the  treasons  enacted  in  Ireland  in  the  time  of  H.  6. 
and  afterwards  before  10  H.  7.  were  repealed,  and  consequently  this 
statute  of  18  H.  6.  cap.  3. 

But  that  seems  not  to  be  so,  for  the  general  introduction  of  the 
statutes  of  England  being  an  affirmative  law  could  not  be  intended 
to  take  away  those  particular  statutes,  that  were  made  in  Ireland  for 
the  declaring  of  treason,  as  this  and  that  also  of  the  same  year,  cap.  2. 
for  taking  Comericke.{z) 

But  surely  this  was  no  levying  of  war  within  this  statute, (a)  either 
in  respect -of  the  matter  itself  or  of  the  person  that  did  it,  he  being 

(+)  Concerning  the  riots  committed  by  the  Welsh  upon  the  dragmen  of  Severn,  vide 
infra,  p.  151. 

(z)  That  is,  for  taking  thieves,  robbers,  or  rebels  into  safe  guard. 

(a)  Tho  this  were  not  levying  of  war,  yet  being  cessing  of  soldiers  upon  the  subject, 
it  was  treason  within  the  express  words  of  that  statute;  nor  does  our  author  assign  any 
reason,  why  an  act  of  lord  deputy  and  council  is  not  within  tlie  penally  of  thut  law.  See 
Camd.Eliz.p.2ld. 


147  HISTORTA  PLACITORUM  CORONJE. 

the  king's  lieutenant,  neither  could  an  act  by  the  lord  deputy  and 
council  of  this  nature  be  construed  to  be  within  the  penalty  of  this 
act,  if  it  were  in  force  ;  yet  for  this  and  other  cumulative  treasons  he 
was  attainted  by  act  of  parliament,  but  that  attainder  was  very  justly 
repealed  by  the  statute  of  14  Car.  2. 

Now  I  shall  draw  out  some  observations  and  conclusions 
[  148  ]   from  the  precedents  and  instances  before  given  touching  this 
■'    .         obscure  clause  of  levying  war  against  the  king. 

1.  A  conspiracy  or  confederacy  to  levy  war  against  the  king  is  not 
a  levying  of  war  within  this  clause  of  the  statute  of  25  E.  3.  for  this 
clause  requires  a  war  actually  levied.   Co.  1\  C.  p.  10. 

And  this  appears  j^/-^/  by  those  temporary  laws,  that  were  made  to 
continue  during  the  king's  or  queen's  life,  which  made  conspiring  to 
levy  war  with  an  overt  act  evidencing  such  conspiracy  to  be  treason, 
as  the  statutes  of  I  S,-  2  Ph.  8,^  M.  cap.  10.  13  Eliz.  cap.  1.  and  13 
Car.  2.  cap.  1.  and  secondly  by  the  resolution  of  the  judges  in  the 
case  oi  Burton  39  Eliz.  cited  by  my  lord  Coke,  P.  C.p.  9,  10.[12] 

2.  That  yet  such  a  conspiracy  or  compassing  to  levy  war  against 
the  king  directly  or  against  his  forces,  and  meeting  and  consulting  for 
the  eflecting  of  it,  whether  the  number  of  the  conspirators  be  more 
or  less,  or  disguised  under  any  other  pretence  whatsoever,  as  of  re- 
formation of  abuses,  casting  down  inclosures  particular  or  generally, 
nay  of  wrestling,  football-playing,  cock-fighting;  yet  if  it  can  appear, 
that  they  consulted  or  resolved  to  raise  a  power  immediately  against 
the  king,  or  the  liberty  or  safety  of  his  person,  this  congregating  of 
people  for  this  intent,  tho  no  war  be  actually  levied,  is  an  overt-act 
to  maintain  an  indictment,  for  compassing  the  king's  death  within 
the  first  clause  of  the  statute  of  25  E.  3.  for  it  is  a  kind  of  natural  or 
necessary  consequence,  that  he,  that  attempts  to  subdue  and  conquer 
the  king,  cannot  intend  less  than  the  taking  away  his  life;  and  indeed 
it  hath  been  always  the  miserable  consequence  of  such  a  conquest, 
as  is  witnessed  by  the  miserable  tragedies  of  E.  2.  and  B.  2.  and  this 
was  the  case  of  Oldcastle  and  Essex. 

3.  That  yet  conspiring  to  levy  war,  {viz.  to  do  such  an  act,  which 
if  it  were  accomplished  and  attained  its  end  would  be  an  actual  levy- 
ing of  war)  and  being  accompanied  with  an  overt-act  evidencing  it, 
(tho  it  be  not  treason  within  this  clause  of  the  act  of  25  E.  3.)  yet 

was  treason  during  the  queen's  life  by  the  statute  of  13 
[  149  ]  Eliz.  cap.  1.  and  is  treason  at  this  day  by  the  statute  of  13 
Car.  2.  cap.  1.  during  the  life  of  our  now  sovereign. 
But  then  the  overt-act  (be  it  speaking,  writing,  or  acting)  required 
by  these  statutes  to  evidence  the  same  must  be  specially  laid  in  the 
ilidictment,  and  proved  upon  the  evidence  :  thus  in  Grant's  case  and 
JJnrlon's  case  the  conspiring  to  fetch  arms  at  the  houses  therein 
mentioned  Was  an  overt-act  proving  this  conspiracy  to  levy  war. 

4.  That  a  levying  of  war  with  all  the  circumstances  imaginable  io 


[12]  And  the  Act  of  3G  Geo.  3.  c.  7.  whicli  was  to  continue  in  force  during  the  king's 
life. 


niSTORIA  PLACITORUM  CORONA.  149 

eive  it  that  denotinnation,  as  cum  vexiUis  explicating  cum  mnliitu^ 
dine  i^enlium  armatarum  &,"  modo  guerrino  arraiaC,  yet  if  it  be 
upon  a  mere  private  quarrel  between  private,  tho  great  persons,  or 
to  throw  down  the  inclosures  of  such  a  manor  or  park,  where  the 
party  tho  without  title  claims  a  common,  or  upon  dispute  concerning 
the  propriety  of  liberties  or  franchises,  this,  tho  it  be  in  the  manner 
of  it  a  levying  of  war,  yet  it  is  not  a  levying  of  war  against  the  king, 
ttio  bloodshed  or  burning  of  houses  ensue  in  that  attempt,  but  is  a 
great  riot,  for  which  the  oftenders  ought  to  be  fined  and  imprison- 
ed ;[13]  and  if  any  be  killed  by  the  rioters  in  the  riot,  it  may  be 
murder  in  the  assailant. 

This  was  the  case  of  the  earls  of  Gloucester  and  Hereford,  anno 
20  £.  1.  tho  before  the  statute  of  25  E.  3.  and  the  several  great  riots 
above-mentioned,  to  which  we  may  add  Rot.  Pari.  50  E.  3.  n.  140, 
164.   11  H.  4.  n.  36,  57.   13  ^.  4.  n.  14.   IS  H.  6.  n.  30. 

5.  An  actual  levying  of  war  therefore  against  tlie  king  to  make  a 
treason,  for  which  the  offender  may  be  indicted  upon  this  clause  of 
the  statute  for  levying  of  war  against  the  king,  consists  of  two  princi- 
pal parts  or  ingredients,  viz.  1.  It  must  be  a  levying  of  war.  2.  It 
must  be  a  levying  of  war  against  the  king. 

6.  What  shall  be  said  a  levying  of  war  is  partly  a  question  of  fact, 
for  it  is  not  every  unlawful  or  riotous  assembly  of  many  persons  to 
do  an  unlawful  act,  tho  de  facto  they  commit  the  act  they  intend,  that 
makes  a  levying  of  war,  for  then  every  riot  would  be  trea- 
son, and  all  the  acts  against  riotous  and  unlawful  assem-  (]  150  ~\ 
blies,  as  13  ^.  4.  cap.  7.  2  H.  5.  cap.  8.  8  H.  6.  cap.  14.  and 

many  more(6)  had  been  vain  and  needless;  but  it  must  be  such  an 
assembly  as  carries  with  it  specieni  belli,  as  if  they  ride  or  march 
vexillis  explicatis,  or  if  they  be  formed  into  companies,  or  furnished 
with  military  officers,  or  if  they  are  armed  with  military  weapons, 
as  swords,  guns,  bills,  halberds,  pikes,  and  are  so  circumstanced,  that 
it  may  be  reasonably  concluded  they  are  in  a  posture  of  war,  whicli 
circumstances  are  so  various,  that  it  is  hard  to  define  them  all  par- 
ticularly. 

Only  the  general  expression  in  all  the  indictments  of  this  nature, 
that  I  have  seen,  are  more  guerrino  arraiati,  and  sometimes  other 
particulars  added  as  the  fact  will  bear,  as  cum  vexillis  explicatis, 
cum  armis  defensivis  4*  offensivis,  cum  tympanis  Sf  tuhis:  but 
altho  it  be  a  question  of  fact,  whether  war  be  levied  or  conspired  to 
be  levied,  which  depends  upon  evidence,  yet  some  overt-act  nuist  be 
shewn  in  the  indictment,  upon  which  the  court  may  judge  ;  and  this 
is  usually  modo  guerrino  arraiati,  ov  armati,  ox  conspirmg  to  get 
arms  to  arm  themselves. 

And  tlierefore  in  the  cases  of  Burton  and  Grant  before-men- 
tioned, who  were  indicted  and  convicted  upon  the  statute  of  13  Eliz. 

(6)  See  3  <^  4  Edw.  VI.  cap.  5.  1  Mar.  cap.  12.  1  Geo.  I.  cap.  5. 
[13]  Post.  210.    Havok.  c.  17.  s.  25. 


]50  HISTORIA  PLACITORUM  CORONiE. 

cap.  1.  for  conspiring  to  levy  war  for  pulling  down  inclosnres,  &c. 
tiiere  is  not  only  a  conspiracy  to  do  (he  thing,  but  also  to  gain  arms 
and  weapons  at  the  lord  Norri&'s  house,  and  elsewhere  to  arm  them- 
selves lor  that  attempt. 

And  the  reason  hereof  seems  to  be,  because,  when  an  assembly  of 
people  thus  arm  themselves,  it  is  a  plain  evidence,  that  they  mean  to 
defend  themselves,  and  make  good  their  attempts  by  a  military  force, 
and  to  resist  and  subdue  all  power,  that  shall  be  used  to  suppress 
them;  and  besides,  the  very  use  of  weapons  by  such  an  assembly 
without  the  king's  licence,  unless  in  some  lawful  and  special  cases, 
carries  a  terror  with  it,  and  a  presumption  of  warlike  force^  and 
therefore  under  a  distinct  and  special  restraint  by  the  sta- 
[  151  ]  tute  of  Wtstminst.  2.(c)  and  the  statute(fi^)  of  7  E.  1.  de 
defensione  portandi  arma. 

7.  Whether  the  bare  assembling  of  an  enormous  multitude  for 
doing  of  these  unlawful  acts  without  any  weapons,  or  being  tnore 
giierrino  arraiati,  especially  in  case  of  interpretative  or  construc- 
tive levying  of  war,  be  a  sufficient  overt-act  to  make  a  levying  of 
war  within  this  act,  especially  if  they  commit  some  of  these  acts 
themselves,  is  very  considerable  and  seems  to  me  doubtful.  1.  Be- 
cause I  have  not  known  any  such  case  ruled.  2.  Because  the  acts 
of  3  &  4  Ed.  6.  cap.  5.  and  1  Mar.  cap.  12.  (which  must  be  intended 
of  such  unarmed  assemblies)  makes  it  in  some  cases  felony,  in  some 
cases  only  misdemeanor.  3,  Because  it  is  very  difficult  to  determine 
what  that  number  must  be,  that  must  make  treason,  and  less  than 
which  must  be  only  a  riot ;  this  therefore  should  be  well  considered, 
and  the  direction  of  the  statute  of  25  E.  3.  to  expect  the  declaration 
of  parliament  in  like  cases  is  a  safe  direct-ion,  and  so  much  the 
rather,  because  the  statutes  of  E.  6.  and  queen  Mary  seem  to  look 
the  other  way,(f')  to  which  may  be  added  the  great  riots  committed 
by  the  foresters  and  Welsh  upon  the  dragmen  of  Severn,  hewing  all 
their  boats  to  pieces,  and  drowning  the  bargemen  in  a  warlike  pos- 
ture. Rot.  Pari.  8  H.  6.  n.  30,  45.  9  H.  6.  n.  37.  upon  which  the 
statute  of  9  H.  6.  cap.  5.  was  made  :  I  forbear  therefore  any  opinion 
herein. 

S.  But  whether  the  assembly  were  greater  or  less,  or  armed  or 
not  armed,  yet  if  the  design  were  directly  against  the  king,  as  to  do 
him  bodily  harm,  to  imprison,  to  restrain  him,  or  to  offer  any  force 
or  violence  to  him,  it  will  be  treason  within  the  first  clause  of  com- 
passing the  king's  death,  and  this  assembling  and  consulting  or 
practising  together  to  this  purpose,  tho  of  but  two  or  three,  will  be 
an  overt-act  to  prove  it;  therefore  all  the  question  will  be 
[  152  3  only  touching  interpretative  or  constructive  levying  of  war, 
whereof  hereafter. 

(c)  I  don't  find  any  tliinp  to  tliis  purpose  in  tlic  statute  of  Westminst.  2.  so  suppose 
the  btiitutc  here  meant  is  llic  statute  of  Nortliamplun  2  E.  3.  caj).  3.  wliercby  it  is  pro- 
hiliitcd  that  any  one  briiiQ;  forrc  in  aflVay  of  the  people,  or  go  armed  by  night  or  by  day. 
See  Co.  J'.  C.  p.  158  Sf  ]  t;().  F.  N.  li.  p.  552. 

(d)  Or  rallier  jjroelumalion  ;  see  the  beginnihg  of  this  chapter, 
(c)  As  docs  also  1  Geo.  I.  cap.  5. 


HISTORIA  PLACITORUM  CORONiE.  152 

9.  If  there  be  war  levied  as  is  above  declared,  viz.  an  assembly 
more  !^uerri?io  arrciiati,  and  so  in  the  posture  of  war  for  any  trea- 
sonable attempt ;  this  is  helium  levatiim,  tho  not  helium  percussurn  : 
and  thus  far  touching  the  levying  of  war,  as  in  relation  to  the  man- 
ner of  it. 

10.  But  besides  the  circumstances  requisite  to  denominate  a  levy- 
ing of  war  in  respect  to  the  manner  of  it,  there  is  also  requisite  to 
make  a  treason  witliin  this  clause,  that  it  be  a  levying  of  war  against 
the  king,  which  is  the  scope,  end  and  termination  thereof,  for,  as 
hath  been  said,  there  may  be  a  levying  of  war  between  private  per- 
sons upon  private  quarrels,  which  is  not  a  levying  of  war  against 
the  king,  and  so  not  treason  within  this  clause  of  this  act. 

11.  A  levying  of  war  against  the  king  therefore  is  of  two  kinds, 
either  expressly  and  directly,  or  by  way  of  interpretation,  construc- 
tion or  exposition  of  this  act :  the  former  is,  when  a  war  is  levied 
against  the  person  of  the  king,  or  against  his  general,  or  army  by 
him  appointed,  or  to  do  the  king  any  bodily  harm,  or  to  imprison 
him,  or  to  restrain  him  of  his  liberty,  or  to  get  him  into  their  power, 
or  to  enforce  him  to  put  away  his  ministers,  or  to  depose  him;  many 
instances  of  this  kind  may  be  given,  such  as  was  in  truth  the  riding 
of  the  earl  of  Essex  into  London  armed  with  swords  and  pistols, 
his  solliciting  of  the  citizens  to  go  with  him  to  court  to  remove  from 
the  queen  her  ministers  and  counsellors,  his  fortifying  of  his  house 
against  the  queen's  officers,  which  were  in  truth  a  levying  of  war, 
tho  his  indictment  was  upon  the  first  clause  of  compassing  the  queen's 
death,  which  was  more  clearly  included  within  these  actions. 

12.  Constructive  or  interpretative  levying  of  war  is  not  so  much 
against  the  king's  person,  as  against  his  government:  if  men  as- 
semble together  97iore  guet-rino  to  kill  one  of  his  majesty's  privy 
council,  this  hath  been  ruled  to  be  levying  of  war  against  the  king. 
P.  16  Car.  1.  Cro.  583.  Betisted's  case  before  cited,  and  accord- 
ingly was  the  resolution  of  the  house  of  lords  17  B.  2.  Talbot's  case 
above-mentioned. 

So  in  the  case  mentioned  by  my  lord  Coke  in  the  time  of 
H.  8.  Co.  P.  C.  p.  10.  levying  war  against  the  statute  of  riSS"] 
L(ibotirers[l4'\  and  to  itihance  servants  wages  was  a  levy- 
ing of  war  against  the  king;  and  altho  levying  of  war  to  demolish 
some  pari icular  inclosures  is  not  a  levying  of  war  against  the  king, 
Co.  P.  C.p.  9.  yet  if  it  be  to  alter  religion  established  by  law,  or  to 
go  from  town  to  town  generally  to  cast  down  inclosures,  or  to  (\e- 
liver  generally  out  of  prison  persons  lawfully  imprisoned,  this  hath 
been  held  to  be  levying  of  war  against  the  king  within  this  act,  and 
the  conspiring  to  levy  war  for  tliose  purposes  treason  within  that 
clause  of  the  act  of  13  Eliz.  cap.  1.  as  was  resolved  in  Barton's 
case  and   Grant's  case  above-mentioned ;  and  the  like  resolution 

[14]  Hatch,  c.  17.  s.  25.  Fosf.  211.  Lord  Georfie  Gordon's  case,  21.  CobhetCs  St.  Tr. 
485.  Douirl.  590.  4  lil.  Com.  bl. 

VOL.  I. —  IS 


153  HISTORIA  PLACITORUM  CORONA. 

was  in  the  case  of  the  apprentices  that  assembled  more  guerrino  to 
pull  down  bawdy-houses. 

It  is  considerable  how  these  resolutions  stand  with  the  judgment 
of  parliament  in  3  &  4  Ed.  G.  cap.  12.  which  makes  special  provi- 
sions to  make  assemblies  above  twelve  to  alter  the  laws  and  statutes 
of  tlie  kingdom,  or  the  religion  established  by  law,  or  if  above  forty- 
assemble  for  pulling  down  inclosures,  burning  of  houses,  or  stacks  of 
corn,  treason,  if  they  departed  not  to  their  homes  witliin  an  hour 
after  proclamation,  or  after  proclamation  put  any  of  these  designs  in 
practice,  which  is  nevertheless  reduced  to  felony  within  clergy  by  the 
statute  of  1  Mar.  sess.  2.  cap.  12.  Th^se  oifenses  being  the  same 
with  those  adjudged  treason  in  Burfon's  case  and  some  others  be- 
fore cited,  why  was  it  thought  necessary  for  an  act  of  parliament  3 
S,'  4  Ed.  6.  to  make  it  treason  under  certain  qualifications,  and  why 
reduced  to  felony  within  clergy  by  the  statute  of  1  Mar.  cap.  12.  and 
the  statute  of  3  ^  4  ^.  6.  repealed?  It  seems  that  altho  the  unlaw- 
ful ends  of  these  assemblies  thus  punished  by  3  4'  4  Ed.  6.  and  1 
3'Iar.  were  much  the  same  with  those  of  Burlon  and  Grant  and 
others,  that  were  adjudged  treason,  yet  the  difterence  between  the 
cases  stood  not  in  that,  but  in  the  manner  of  their  assembly;  those 
that  w-ere  adjudged  treasons  in  Burton's  and  Grant's  case  were, 
because  it  was  a  conspiracy  to  arm  themselves  and  levy  a  war  more 
guerrino. 

But  those,  that  were  thus  heightened  to  treason  by  3  8; A 
r  154  ]  E.  6.  and  reduced  to  felony  by  1  Mar.  were  not  intended  of 
such,  as  were  more  giiei'inno  arraiati, dov  a  levying  of  war, 
tho  their  multitudes  were  often  great,  and  tho  they  they  did  put  in 
lire  the  things  they  conspired  to  effect,  and  so  were  but  great  riots 
and  not  levying  war  within  this  clause  of  25  E.  3.  and  therefore 
those  acts  inflicted  a  new  and  farther  punishment  on  them. 

III.  Efi  son  realme :  hitherto  it  hath  been  said  what  is  a  levying 
of  war  ;  we  are  now  to  consider  the  place.  En  son  realme. 

The  realm  of  England  comprehends  the  narrow  seas,  and  there- 
fore if  a  war  be  levied  upon  those  seas,  as  if  any  of  the  king's  sub- 
jects hostily  invade  any  of  the  king's  ships,  (which  are  so  many 
royal  castles)  this  is  a  levying  of  war  within  his  realm,  for  the  nar- 
row seas  are  of  the  ligeance  of  the  crown  of  England  :  vide  Seldeni 
Mare  clansum. 

And  this  may  be  tried  in  the  county  next  adjacent  to  the  coast  by 
an  indictment  taken  by  the  jurors  for  that  county  before  special  com- 
missioners o{  oyer  and  terminer,  de  quo  vide  infra,  ^\\&  in  tlie  chap- 
ter of  piracy  :  vide  5  R.  2.  Trial  54. 

It  is  true,  before  the  statute  of  28  H.  8.  cap.  15.  those  treasons 
were  usually  inijuircd  and  tried  by  special  connihssion,  wherein  the 
admiral  and  his  lieutenant  were  named,  as  likewise  other  felonies 
conmiitted  upon  the  sea. 

lint  divers  instances  were  in  the  time  of  E.  3.  whereby  such 
oflenses  upon  the  sea  were  punished  as  treason  or  felony  in  the  king's 
bench.  40  ^Iss.  25.     A  Norman  captain  of  a  ship  robs  the  king's 


HISTORIA  PLACITORUM  CORONiE.  154 

subjects  upon  the  sea,  he  being  taken  was  hanged  as  a  felon,  but  the 
English  that  assisted  him  were  drawn  and  hanged  as  traitors  ;  and 
by  the  statute  of  2S  H.  8.  cap.  15.  there  is  a  direction  of  a  special 
commission  to  try  them  in  such  counties  or  places  as  shall  be  assign- 
ed by  such  commission  according  to  the  method  of  trials  of  such 
offenses  at  the  common  law,  but  before  that  statute  they  might  be 
tried  by  special  commission  at  the  common  law,  and  according  to 
the  course  of  the  common  law ;  but  of  this  alibi  in  tractatu  de 
^dmiruUtale. 

For  treasons  and  other  capital  offenses  in  Scotland  there 
is  a  provision  made  by  the  statute  of  4  Jac.  cap.  1  and  7  Jac.  [  155  ]] 
cap.  1. 

Ireland,  tho  part  of  the  dominions  of  the  crown  of  England,  yet 
is  no  part  of  the  realm  of  England,  nor  infra  quatuor  mar  la,  as 
hath  been  ruled  temp.  E.  1.  Morrice  Howard'' s  case  :  the  like  is  to 
be  said  for  Scotland  even  while  it  was  under  the  power  of  the  crown 
of  England,  as  it  was  in  sometimes  of  E.  1.  and  some  part  of  the 
time  of  E.  3.  S  Rich.  2.  Continual  claim  13. 

For  Ireland  hath  the  same  laws  for  treason  that  England,  tho  it 
hath  some  more ;  yet  for  a  levying  war,  or  other  treason  in  Ireland 
the  offender  may  be  tried  here  in  England  by  the  statute  of  35  H.  Q. 
cap.  2.  for  treasons  done  out  of  the  realm,  as  was  resolved  in  the 
case  of  0-Rork,  H.  33.  Eliz.{*)  and  after  that  in  Sir  John  Perrot's 
case,(/)  Co.  P.  C.p.  11.  7  Co.  Rep.  Calvin's  case,  23.  a. 

In  the  case  of  the  lord  Macguire{g)  an  Irish  peer,  who  was  in- 
dicted in  Middlesex  for  high  treason  for  levying  war  again  the  king 
in  Ireland,  he  pleaded  to  the  indictment,  that  he  was  one  of  the  peers 
and  lords  of  parliament  in  Ireland,  and  demanded  judgment,  if  he 
should  be  arraigned  in  England  for  a  treason  committed  in  Ireland, 
whereby  he  should  lose  the  benefit  of  trial  by  his  peers;  but  it  was 
resolved,  1.  That  for  a  treason  in  Ireland  a  man  may  be  tried  here 
in  England  by  the  statute  of  35  H.  8.  for  it  is  a  treason  committed 
out  of  the  realm.  2.  That  altho  Macguire,  if  tried  in  Ireland  for 
his  treason,  should  have  had  his  trial  by  his  peers,  as  one  of  the 
lords  in  parliament,  which  he  cannot  have  here,  but  must  be  tried 
by  a  common  jury,  yet  that  altered  not  the  case;  he  was  therefore 
put  upon  his  trial  by  a  Middlesex  jury,  and  was  convicted  and 
had  judgment,  and  was  executed.  H.  20  Car.  1.  B.  R.  so  that 
the  opinion  20  Eliz.  Dy.  360.  b.  was  ruled  no  law :  vide  Co. 
Lift.  261. 

And  the  same  that  is  said  of  Ireland  may  be  said  in  all 
particulars  of  the  isle  o{  Man,  Jersey,  Guernsey,  Surk,  and  [  156  ] 
^Ilderney,  which  are  parcel  of  the  dominions  of  the  crown 
of  England,  but  not  within  the  realm  of  England  as  to  this  purpose 
concerning  treason  ;  yet  they  have  special  laws  of  their  own  appli- 
cable to  criminals  and  jurisdiction  for  their  trials :  as  touching  treason 
conmiitted  in  fVales  before  the  statute  of  26  H.  S.  cap.  6.  no  treason, 

(  *  )  Camd.  Eliz.  p.  458. 

(/)  See  his  trial  in  Stale  Tr.  Vol.  I.  p.  181.  (£•)  State  Tr.  Vol.  I. p.  928. 


156  HISTORIA  PLACITORUM  CORONA. 

murder,  or  felony  committed  in  fFa/es  was  inquirable  or  triable  be- 
fore commissioners  of  o?/er  and  teinniner,  or  in  the  king's  bench  in 
England,  but  before  justices  or  commissioners  assigned  by  the  king 
in  those  counties  of  Wales  where  the  fact  was  committed.  P.  2  H.  4. 
Rot.  18.  Salop'':  ^'■Johannes  Kynaston  indictatus  fuit  quod  ipse  con- 
sentiens  fuit  ad  falsam  &  proditiosam  insurrectionem  Oweyn  Glyn- 
dour  &  aliorum  fVallicoriirn,  &  sciens  de  toto  proposito  eorundem, 
qui  proditiose  combussernnt  villas  de  Glyndour  Dyiiby,  &c.  &  quod, 
proditiose  misit  Johannem  iilium  sunm  bene  armatum  &  arraiatum 
pro  guerra  &  IVillielmum  Hunte  sagittarium  ad  prsedictum  Oweyn 
&  exercitum  JVallicorum,  &c.  dicit  quod  prsedictaB  villse,  in  quibus 
supponitur  proditiones  pra3dictas  factas  fuisse,  sunt  infra  terrani 
fValllae  &  extra  corpus  com'  Salop'  &  legem  terras  Ans^lisa,  unde  non 
intendit  quod  dominus  rex  de  proditionibus  prgedictis  in  hoc  casu 
ipsum  impetire  velit,  sen  ipsum  ponere  velit  inde  responsurum,  & 
quia  plenarie  &  certitudinaliter  testificatum  est,  quod  proedictge  villiB 
sunt  infra  terram  Wallix  &  extra  corpus  comitates  Salop'  &  legem 
terra3  Angliae,  &  Thomas  Covele  attornatus  ipsius  regis  coram  ipso 
rege  inde  examinatus  hoc  non  dedicit,  &  sic  justiciarii  ad  inquiren- 
dum de  proditionibus  prsedictis  infra  IValliam  factis  virtute  com- 
missionis  pra3dictse  inquirere  minime  potuerunt  nee  proditiones  prae- 
dicias  sic  in  terra  /^Fa/Z/c-e  fact a3  per  legem  terrse  ./^//^//a?  triari  nee 
terminari  possunt,  consideratum  est,  quod  quoad  prasdictas  pro- 
ditiones praidictus  Johannes  Kynaston  eat  inde  quietus,  &c."  But 
it  is  true  by  the  statute  of  26  H.  8.  cap.  6.  counterfeiting  of  coin, 
washing,clipping  or  minishing  of  the  same,  felonies,  murders,  wilful 
burnings  of  houses,  manslaugliters,  robberies,  burglaries,  rapes,  and 
accessaries  of  the  same  and  other  oifenses  feloniously  done 
\_  157  ]  iu  Wales,{h)  or  any  lordship  marcher  may  be  inquired  of, 
heard  and  determined  before  the  justices  of  gaol-delivery 
and  of  the  peace  and  every  of  them  in  the  next  adjacent  county  :  this 
act  is  confirmed  by  the  great  statute  of  Wales  34  &  35  H.  8.  cap.  2-6. 
which  settles  the  grand  sessions  and  justices  thereof,  and  gives  the  jus- 
tices of  the  grand  sessions  power  to  hold  all  manner  of  pleas  of  the 
crown,  and  to  hear  and  determine  all  treasons,  felonies,  &c.  within 
the  precinct  of  their  commissions,  as  fully  as  the  court  of  king's  bench 
may  do  in  their  places  within  the  realm  of  England;  so  that  as  to 
those  offenses  enumerated  in  the  statute  of  26  //.  8.  the  justices  of 
gaol-delivery  in  the  adjacent  counties,  viz  Gloucester,  Hereford,  Salop 
and  Wigorn,  had  thereby  a  concurrent  jurisdiction  with  the  justices 
of  the  grand  session. (/) 

But  whether  the  statute  of  26  //.  S.  extended  to  treason  for  com- 
passing the  king's  death  or  levying  of  war,(/L')  or  whether  the  same 

(/()  For  this  act  extends  to  all  the  anticnt  counties  of  Wales,  as  well  as  the  lordships 
marchers;  and  so  it  was  resolved  in  Althoc's  case  for  a  murder  in  Pembrokeshire.  T.  9 
Geo.  I.  B.  R. 

(i)  1  Mod.  G4,  68. 

{k)  It  should  seem  that  it  did  not,  and  that  was  one  reason  of  making  the  statute  of 
32  H.  cap.  4.  whcrehy  all  treasons  or  misprisons  of  treasons  cominitted  in  Wales  may 
be  presented  and  tried  in  such  shires  and  hefore  such  commissioners  as  the  king  shall 
appoint,  in  like  manner  as  if  the  facts  had  been  committed  in  such  sliires. 


HISTORIA  PLACITORUM  CORONiE.  157 

remained  only  triable  by  the  justices  of  the  grand  sessions,  seems 
doubtful,  and  the  rather,  because  that  statute  is  not  construed  by 
equity,  and  therefore  it  extends  not  to  an  appeal  of  murder  in  an  ad- 
jacent county,  and  so  it  was  adjudged  Hil.  7  Cur.  B.  R.  Senllrj  and 
Price;{l)  but  at  this  day  26  H.  S.  cup.  6.  stands  repealed  by  1  &  2 
Ph.  &  M.  cup.  10.  as  to  the  trials  of  treason. (m) 

It  is  true,  that  in  other  criminal  causes,  that  are  not  capital,  as  in 
cases  of  indictments  of  riots,  they  may  he  removed  by  certioruri  into 
the  king's  bench,  and  when  issue  is  joined  they  may  be  tried  in  the 
next  Eii'j^lish  county,  T.  16  Juc.  Sir  John  Cureid's  case(/i)  and 
divers  others,  as  well  as  in  a  q\w  minus,  whicii  is  at  tlie 
king's  suit :  but  whether  a  certioruri  lies  into  Wales  upon  an  f  158  1 
indictment  of  treason  or  felony  hath  been  doubted  M.  9 
Car.  B.  R.  Chedley^s  case:(o)  it  seems  a  certiorari  may  issue  for  a 
special  purpiose,  as  to  quash  the  indictment  for  insufficiency  or  to 
plead  his  pardon,  but  not  as  to  trial  of  the  fact,(/7)  hut  it  shall  be 
Sent  down  by  mittimus  according  to  the  statute  of  6  H.  8  cap.  6.  be- 
cause it  is  in  a  manner  essential  for  felony  or  treason  to  be  tried  in 
the  proper  county,  unless  where  a  statute  particularly  enables  it, 
which  it  did  in  the  case  of  26  H.  8.  only  whilst  it  was  in  force,  where 
the  indictment  as  well  as  the  trial  is  in  the  adjacent  county. 

But  certainly  IVules  is  within  the  kingdom  of  England,{cj)  and 
therefore  not  within  the  statute  of  35  H.  8.  cap.  2.  for  trial  of  foreign 
treasons. 

If  a  felony  or  treason  be  committed  in  Durham,  a  certiorari  lies 
to  remove  it  into  the  king's  bench  out  of  Durham  directed  to  the 
justices  of  peace,  ojiyer  and  terminer,  or  gaol-delivery  there;  for  since 
the  statute  of  27  H.  8.  cap.  24.  they  are  all  made  by  the  king's  com- 
mission, and  so  the  proceedings  before  them  are  his  own  suit,  and 
thus  it  was  done  in  Ruttabie^s  case(r)  upon  debate;  but  if  the  party 
plead  not  guilty  it  shall  be  sent  down  thither  to  be  tried,  as  was  done 
in  that  case.  T.  1653.  They  o{  Durhum  claim  a  privilege  not  to  be 
sworn  out  of  the  precinct  of  the  county  palatine.  Vide  the  statute 
of  2  H.  5.  cap.  5.  9  //.  5.  cap.  7.  \\  H.  7.  cap.  9.  for  treasons  and 
felonies  in  Tinda I  and  Hexamshire.il 5] 

(')  Cro.  Car.  247.  W.  Jones  255. 

('")  The  I  &  2  Ph.  Sf  M.  reducing  all  trials  for  treason  to  the  order  and  course  of  the 
common  law  is  a  virtual  repeal  of  26  H.  8.  and  by  the  same  reason  of  32  H.  8.  also  as  to 
treason. 

in)  Cro.  Jac.  484.  2  Rol.  28.  1  Rol.  Abr.  394. 

(0)  Crp.  Car.  331. 

(p)  But  yet  it  has  been  done  in  felony  as  to  the  trial  of  the  fact,  as  in  the  case  of  Morris 
1  Ven.  93,  146.  Herbert's  case,  Latch.  12. 

(7)  2  Rol.  28.  (r)  Vide  infra,  p.  467.  and  Part  U.p.  212. 


[15]  As  to  the  place  at  which  the  accused  is  to  be  tried,  the  Constitution  of  tlie  United 
Stales,  (Art.  3.  Sect.  2,  c.  3.)  provides  that  the  trial  sliiill  be  held  in  the  Slate  where  the 
crime  shall  have  been  commilled;  but,  when  not  committed  within  any  State,  the  trial 
shall  be  at  such  place  or  places  as  Congress  may  by  law  have  directed.  By  sect.  2'Jth 
of  the  .\ct  ofCongrcss  of24<A  Sept.  1789.  Scss.  1.  ch.  20.  in  cases  punishable  with  death, 
the  trial  shall  be  held  ia  the  county  where  tlie  ofFonce  was  committed,  or  when  that  can- 


158  HISTORIA  PLACITORUM  CORONA. 

And  thus  far  concerning  treason  in  levying  of  war   against  the 
king.[l6] 

lict  be  done  without  gjreat  inconvenience,  twelve  petit  jurors  at  least  shall  be  summoned 
from  tlicnce.  By  the  8th.  sect.  oftlieAct  of  30/A  April,  1790,  if  any  person  shall  commit 
upon  the  high  seas,  or  in  any  river,  haven,  basin  or  bay,  out  of  the  jurisdiction  of  any 
particular  State,  any  offence  which  if  committed  within  the  body  of  a  county,  would  by 
the  laws  of  the  Uniled  States  be  punishable  with  death,  &,c.,  the  trial  shall  be  in  the  dis- 
trict  where  the  offender  is  apprehended,  or  into  which  he  may  be  first  brought.  See  Ex 
parte  Bvllman  v.Swartwout,  4  Cranch.  136.  Serg,  on  Cons.  246. 

There  seems  to  have  been  no  regular  mode  at  common  law  for  the  trial  of  treasons 
conmiilted  out  of  the  realm.  It  is  said  that  if  the  court  remove  into  a  different  county 
from  that  wherein  the  indictment  was  found,  the  trial  must  still  be  by  jurors  returned 
from  the  first  county,  agreeable  to  the  rules  of  the  common  law.  1  East.  P.  C.  103. 

[16]  Levying  of  war,  under  the  statute  of  Edw.  3.  is  either  direct,  or  constructive. 
Direct,  when  it  is  levied  against  the  person  of  the  king  ;  to  dethrone,  or  imprison  him, 
or  to  get  possession  of  his  person,  or  to  oblige  him  to  alter  his  measures  of  government, 
or  to  remove  evil  counsellors,  &.C.,  and  this,  whether  attended  with  the  pomp  and  cir- 
cumstance of  open  war  or  no.  And  every  conspiracy  to  levy  war  for  these  purposes, 
though  not  treason  within  the  clause  of  levying  war,  is  yet  an  overt  act  within  the  other 
clause  of  compassing  the  king's  death.  Fost.  210.  Ante,  131.  Hawk.  c.  17.  s.  23.  Arch. 
C.  P.  463.  1  East,  P.  C.  66.  In  case  of  war  levied  directly  against  the  king,  all  per- 
sons  assembled  and  marching  with  the  rebels  are  guilty  of  treason,  whether  they  are 
aware  of  the  purpose  of  the  assembly,  or  aid  and  assist  in  committing  acts  of  violence 
or  not.  R.  v.  The  Earls  of  Essex  and  Southampton,  Moor,  621  ;  unless  compelled  to. 
join  and  continue  with  them  pro  tiinore  vwrlis.  Ante,  139.  3  Ins.  10.  Fost.  13.  216. 
But  in  the  case  of  a  constructive  levying  of  war,  those  only  of  the  rabble  whj  actually 
aid  and  assist  in  doing  those  acts  of  violence  which  form  the  constructive  treason  are 
traitors ;  the  rest  are  merely  rioters.  See  R.  v.  Messen<rer  et  al,  Kel,  70.  79.  1  Sid.  338. 
2  St.  Tr.  585.  594.     R.  v.  Green  Sf  Beddell,  O.  B.  20  Car.  2. 

Constructive  levying  of  war  is  levelled,  not  against  the  king's  person,  but  against  his 
royal  majesty,  or  government.  Ante,  152.  Fost.  211.  1  East  P.  C.  72.  This  is  when 
an  insurrection  is  raised  to  reform  some  national  grievance,  to  alter  the  established  law, 
or  religion,  to  punish  magistrates,  to  introduce  innovations  of  a  public  concern,  to  ob- 
struct the  execution  of  some  general  law  by  an  armed  force,  or  for  any  other  purpose 
which  usurps  the  government  in  matters  of  a  public  and  general  nature;  also,  assem- 
bling together  for  the  purpose  of  destroying  all  meeting  houses,  all  bawdy  houses,  all 
enclosures,  &lc.,  or  to  reduce  by  force  the  general  price  of  victuals,  to  enhance  the  com- 
mon rate  of  wages,  to  expel  all  foreigners,  to  release  all  prisoners,  or  to  reform  by  num- 
bers or  an  armed  force  any  real  or  imaginary  grievance  of  a  public  and  general  nature, 
in  which  the  insurgents  have  no  peculiar  interest.  1  East,  P.  C.  73.  But  a  rising  for 
tlie  purpose  of  throwing  down  the  enclosures  of  a  particular  manor,  park,  common,  &,c., 
or  to  remove  a  local  nuisance,  to  release  a  particular  prisoner,  unless  imprisoned  for 
treason,  or  even  to  oppose  the  execution  of  an  act  of  parliament,  if  it  only  affect  the 
district  of  tlic  insurgents,  as  in  the  case  of  a  turnpike  act,  is  not  treason ;  nor  is  a  pri- 
vate quarrel  between  subject  and  subject,  though  they  meet  in  battle  array.  1  East, 
P.  C.  76.  FoH.  219.  4  Bl.  Com.  81. 

The  term,  levying  war,  is  a  technical  term,  borrowed  from  the  English  law,  by  the 
framers  of  the  Constitution  of  the  United  States,  and  has  the  same  meaning  as  when 
used  in  the  statute  25  Edw.  3.  which  is  to  be  collected,  as  well  from  adjudged  cases,  as 
from  the  writings  of  approved  elementary  authors.  2  Burr's  Tr.  402.  Tr.  of  Fries,  167. 
Any  insurrection  or  rising  of  any  body  of  the  people  within  the  United  States  to  attain 
or  effect,  by  force  or  violence,  any  object  of  a  great  public  nature,  or  of  a  public  and 
general  concern,  is  a  levying  of  war  against  the  United  States,  Tr.  of  Fries,  196;  or  op- 
posing by  force  of  arms  an  Act  of  Congress  with  a  view'  of  defeating  its  etiicacy,  and  thus 
defying  the  authority  of  the  government;  Id.  168.  U.  S.  \.  Vigol,  2  Dall.Ml.  Any 
combination  to  subvert  by  force  the  government  of  the  United  States,  violently  to  dis- 
nicnibcr  the  Union,  to  compel  a  change  in  the  a<iministration,  to  coerce  the  repeal  or 
adoption  of  a  general  law,  is  a  conspiracy  to  levy  war  ;  and  if  the  conspiracy  be  carried 
into  effect  by  tiie  actual  employment  of  force,  by  the  embodying  and  assembling  of  men 
for  the  purpose  of  executing  the  treasonable  design  which  was  previously  conceived,  it 
amounts  to  levying  of  war.     And  it  has  been  held  that  arms  are  not  essential  to  levying 


HISTORIA  PLACITORUM  CORON.^.  158 

of  war,  provided  the  force  assembled  be  sufficient  to  attain,  or  perhaps  to  justify  attempt- 
ing  the  object  without  them.  2  Burr's  Tr.  421.  4  Cranch.  26.  1  Paine,  C.  C.  R.  271. 
Tr.  of  Fries,  197.  An  insurrection,  the  object  of  which  is  to  suppress  an  office  of  excise, 
established  under  a  law  of  the  United  States,  and  to  compel  the  resignation  of  the  excise 
officer,  and  marcliing  with  a  party  to  the  house  of  such  officer  in  arms,  marshalled  and 
arrayed,  and  committing  acts  of  violence  and  outrage  there,  with  a  view  to  render  void 
an  Act  of  Congress,  or  to  prevent  its  execution,  by  force  or  intimidation,  is  a  levying  of 
war  against  the  United  States.  U.  S.  v.  Vigol,  2  Dall.  346.  U.  S.  v.  Mitchell,  2  id.  355. 
The  travelling  of  individuals,  either  separately  or  in  bodies,  to  tiie  place  of  rendezvous  ia 
pursuance  of  the  conspiracy  to  levy  war,  but  not  in  military  form,  would  not,  it  seems, 
constitute  levying  of  war;  but  the  meeting  of  particular  bodies,  and  marching  in  a  mili- 
tary form,  or  embodying  in  that  form  in  the  first  instance,  would  be  sufficient  to  consti- 
tute  it.  U.  S.  V.  Burr,  4  Cranch,  485.  To  make  an  assemblage  treasonable,  it  must  be 
in  force  and  in  a  warlike  posture ;  it  must  be  in  a  condition  to  make  war,  and  with  such 
appearance  of  force  as  would  justify  the  opinion,  that  they  met  for  that  purpose;  other- 
wise, an  assemblage,  be  the  design  ever  so  treasonable,  is  not  treason  by  levying  war. 
It  is  not  indispensably  requisite  that  such  an  assembly  sh.ould  have  arms,  nor  that  hostili- 
ties should  have  commenced  by  engaging  the  military  force  of  the  United  Stales,  or  that 
force  or  violence  should  be  applied  ;  except,  perhaps,  where  the  design  is,  not  to  overturn 
thegovernment,  but  to  resist  the  execution  of  a  law;  for  then  the  judges  of  the  United  States 
seem  to  have  required  force.  But  when  a  body  of  men  are  assembled  for  the  purpose  of 
making  war  against  the  government,  and  arc  in  a  condition  to  make  that  war,  the  assem- 
blage is  an  act  of  levying  war.  So,  if  men  be  enlisted,  and  march  prepared  for  battle,  or 
in  a  condition  for  action,  it  is  an  overt  act  of  levying  war,  though  they  do  not  come  to 
battle  or  action.  So,  cruising  under  a  commission  from  an  enemy,  in  a  warlike  form,  and 
in  a  condition  to  assail  those  of  wliom  the  cruiser  is  in  quest.  U.  S.  v.  Burr,  4  Cranch,  415. 
487.  And  if  a  territory  of  the  United  States  were  to  be  revolutionized,  though  only  as  a 
means  for  an  expedition  against  a  foreign  power,  the  act  would  be  treason.  1  Burr's  Tr. 
15.  It  was  the  opinion  of  the  Court  in  the  trial  of  Fries,  {pp.  197.  403.)  that  force  is  ne- 
cessary to  complete  the  crime  of  levying  war  ;  though  the  quantum  of  force  is  immaterial. 
Bgt  the  case  before  tlie  Court  was  a  levying  of  war,  by  resisting  the  execution  of  an  Act 
of  Congress. 

The  assembling  of  bodies  of  men,  armed  and  arrayed  in  a  warlike  manner  for  pur- 
poses only  of  a  private  nature,  is  not  treason;  although  the  judges  and  other  peace 
officers  should  he  insulted  or  resisted.  Tr.  of  Fries,  197.  1  Paine,  C.  C.  R.  265. 
With  regard  to  the  persons  who  are  to  be  considered  as  levying  war.  All  those  who 
perform'  tlie  various  and  essential  military  parts  of  prosecuting  the  war,  which  must 
be  assigned  to  different  persons,  may  with  correctness  and  accuracy  be  said  to  levy 
war.  2  Burr's  Tr.  403.  If  war  be  actually  levied,  that  is,  if  a  body  of  men  be  actually 
assembled  for  the  purpose  of  effecting  by  force  a  treasonable  object,  all  those  who  per- 
form any  part,  however  minute  or  however  remote  from  the  scene  of  action,  and  who 
arc  actually  leagued  in  the  general  conspiracy,  are  to  be  considered  as  traitors.  Ex 
parte  Bollinan  tSf  Swarlwout,  4  Cranchr,  126.  If  an  army  should  be  actually  raised 
tor  the  avowed  purpose  of  carrying  on  an  open  war  against  the  United  States  and  sub- 
verting their  government,  the  point  must  be  weighed  very  deliberately,  before  a  judge 
would,  venture  to  decide  that  an  overt  act  of  levying  war  had  not  been  committed  by  a 
commissary  of  purchases,  or  by  a  recruiting  officer  holding  a  commission  in  the  rebel 
service,  who,  though  never  in  tlie  camp,  executed  the  particular  duty  assigned  to  him. 
Per  Marshall,  C.  J  2  Burr's  Tr.  402.  The  true  criterion  to  determine  whether  acts 
conimiitcd  are  treason,  or  a  less  offence,  is  the  quo  animo  or  the  intention  with  which 
the  j)cople  assembled.  When  the  intention  is  universal  or  general,  as  to  effect  some 
object  of  a  general  public  nature,  it  will  be  treason;  and  cannot  be  considered,  con- 
strued, or  reduced  to  a  riot.  Per  Chase,  J.,  Tr.  of  Fries,  197.  See  also  Serg.  an  the 
Const.  367.  Ruwle  on  the  Const.  139.  Davis'  Virg.  C.  L.  54. 

Levying  war,  in  the  Constitution  of  the  United  States,  seems  to  comprehend  only, 
what  in  the  English  books,  is  called  coni^tructive  Icvj'ing  of  war.  Direct  levying  of  war 
being  aimed  at  Uie  person  of  the  king,  the  authorities  which  come  within  that  branch  of 
treapun,  are  of  course,  inapplicable  here;  for  instance,  a  conspiracy  to  levy  war,  if 
direct,  is  an  overt  act  of  compassing  the  king's  death  ;  but  if  constructive,  is  no  treason 
at  all.  Again,  in  case  of  constructive  levying  of  war,  persons  joining  with  rebels,  not 
being  pri\y  to  their  intent  at  the  time,  if  they  commit  no  act  of  force,  or  be  not  aiding 
or  iiR»i-<ting  the  rest,  their  being  present  is  no  presumption  of  guilt.  R.  v.  Green  cf 
Beddell,  at  the  Old  Bailey,  20  Car.  2.;  but  if  it  be  a  direct  levying,  they  arc  all  traitors. 


158  HISTORIA  PLACITORUM  CORONA. 

R.  V.  The  Earl  of  Essex  et  al.  Moor,  621.  And  the  English  cases  of  constructive  levy, 
ing  of  war  have  been  always  cited  in  the  American  courts  and  admitted  by  the  judges 
as  authorities.  Judge  Chase,  in  the  TV.  of  Fries,  p.  180,  said,  that  the  court  would  ad- 
mit of  quotations  wliich  rei'erred  to  what  constituted  constructive  levying  of  war  against 
the  king  of  Great  Britain  in  liis  regal  capacity;  or  in  other  words,  of  levying  war 
against  his  government,  but  not  against  his  person.  He  begged  the  attorney  to  read 
only  tliose  parts  of  the  cases  wliich  referred  to  what  could  be  treason  in  the  Unitpd 
States;  and  nothing  which  related  to  compassing  the  king's  death.  See  the  arguments 
in  this  case,  of  Messrs.  Dallas  (91)  and  Jiawle  (161.)  Davis''  Virg.  Criin.  Law,  56. 
Jiawle  on  Const,,  lil. 


[159]  CHAPTER  XV. 

CONCERNING  TREASON  IN  ADHERING  TO  THE  KING's  ENEMIES  WITHIN 
THE  LAND  OR  WITHOUT. 

The  words  of  the  statute  of  25  E.  3.  go  on,  viz.  Ou  soit  aidant  al 
enemies  nostre  dit  seigneur  le  roy  en  son  royalme  donant  a  eux  ayd 
ou  comfort  en  son  royalme  ou  per  aiiliors. 

I.  Therefore  we  shall  inquire  what  sliall  be  said  enemies  of  the 
king:  those  that  raise  war  against  the  king  may  be  of  two  kinds, 
subjectsor  foreigners:  the  former  are  not  properly  enemies  but  rebels 
or  traitors,  the  latter  are  those,  that  come  properly  under  the  name 
of  enemies. 

This  gives  us  occasion  to  consider  somewhat  of  the  nature  of  war 
and  peace. 

The  power  of  making  war  or  peace  is  inter  jura  siimmi  imperii, 
and  in  England  is  lodged  singly  in  the  king,[l]  tho  it  ever  succeeds 
best  wlien  done  by  parliamentary  advice. 

Peace  is  of  two  kinds,  viz.  1.  Positive  or  contracted.  2.  Such  a 
peace,  as  is  only  a  negation  or  absence  of  war:  that  peace,  which  I 
call  positive,  is  such  as  ariseth  by  contracts,  capitulations,  leagues,  or 
truces  between  princes  or  states,  that  have y«ra  s7tmTni  imperii,  and 
is  of  two  kinds:  1.  Temporary,  which  is  properly  a  truce,  which  is  a 
cessation  from  war  already  begun,  and  then  the  term  being  elapsed 
the  princes  or  states  are  ipso  facto  in  the  former  state  of  war,  unless 
it  be  protracted  by  new  capitulations,  or  be  otherwise  provided  in 
the  instrument  or  contract  of  the  truce.  3.  Perpetual,  si7ie  termino 
or  indefinite,  which  regularly  continues  according  to  the  tenor  or 
conditions  of  the  agreement,  until  some  new  war  be  raised  between 
the  princes  or  states  upon  some  emergent  injury  supposed  to  be  done 
by  the  one  party  or  the  other;  and  this  is  properly  called  a  league 
foidns,  and  makes  the  princes  and  states  confoederati,  and  tho  this 
may  be  variously  diversifiod  according  to  the  capitulations, 
ri60]  conditions  and  (jualifications  of  such  leagues,  yet  they  are 
ordinarily  of  these  kinds:  1.  Leagues  oli'ensive  and  defen- 
sive, which  oblige  the  [)rinces  not  only  to  mutual  defense,  but  also  to 

[I]  See  1  Ul.  Com.  157.  1  KenCa  Com.  51. 


HISTORIA  PLACITORUM  CORONA.  160 

be  assisting  to  each  other  in  their  mihtary  aggresses  upon  others,  and 
makes  the  enemies  of  one  in  effect  the  common  enemies  of  both. 
2.  Defensive,  but  not  offensive,  obliging  each  to  succour  and  defend 
the  other  in  cases  of  invasion  or  war  by  other  princes.  3.  Leagues 
of  simple  amity,  whereby  the  one  contracts  hot  to  invade,  injure,  or 
ofiend  the  other,  which  regularly  includes  also  liberty  of  mutual  com- 
merce and  trade,  and  safeguard  of  merchants  and  traders  in  cither's 
dominions,  tho  this  may  be  diversified  according  to  such  contracts  as 
are  made  in  such  leagues;  and  therefore  in  the  league  between  king 
James  of  England  and  the  king  of  Spain  there  was  a  tacit  excep- 
tion on  the  part  of  the  Spaniard  by  the  wary  penning  of  the  articles, 
whereby  the  freedom  of  our  trade  into  the  western  plantations  of  the 
king  oi  Spain  hath  been  supposed  by  the  Spaniard  to  be  restrained. 

2.  A  peace,  which  is  only  a  negation  or  absence  of  war,  is  that 
which  I  call  a  negative  peace,  because  it  is  only  an  absence  or  nega- 
tion of  war,  there  intervening  no  league  nor  articles  of  peace,  nor  yet 
any  denunciation  of  war,  for  it  is  regularly  true,  iibi  bellum  non  est^ 
pax  est,  tho  neither  prince  is  under  any  capitulation  or  contract;  for 
there  are  divers  princes  in  the  world,  that  never  capitulated  one  with 
another,  and  yet  there  is  no  state  of  war  between  them ;  and  there- 
fore the  war  by  the  Spaniards  upon  the  Indians,  tho  under  pretense 
of  religion,  without  any  just  provocation  hath  been  held  injurious 
and  an  unjnst  aggression,  tho  there  intervened  no  former  articles  of 
peace  between  them. 

War  was  anliently  of  two  kinds,  helium  solemne  vel  7ion  solemne: 
a  solemn  war  among  the  Romans  had  many  circumstances  attending 
it,(o)  and  was  not  presently  undertaken  upon  an  injury  received 
without  these  solemn  circumstances,  1.  Clarigatio(())  or 
demanding  reparation  for  the  injuries  received.  2.  That  [161] 
being  not  done  there  followed  indiction  or  denunciation  of 
war.  3.  Dilation  or  a  space  of  thirty-three  days  before  actual  hos- 
tility was  used;  but  most  times  necessity  and  politic  considerations 
both  among  them  and  other  nations  did  dispense  with  these  solemni- 
ties, which  were  found  oftentimes  too  cumbersome  and  inconvenient, 
especially  where  the  delays  might  occasion  surprizal  or  irreparable 
damage  to  the  commonwealth,  as  where  the  adverse  party  made 
preparations,  which,  if  not  suddenly  repressed,  might  prove  more 
dangerous  and  irresistible. 

But  these  solemn  denunciations  of  war  had  place  only  in  offensive 
or  invasive  wars,  and  even  then  had  many  exceptions. 

1.  If  a  war  be  actually  between  two  princes  or  states,  and  a  tem- 
poraiy  truce  be  made  as  for  a  year  or  two,  that  term  being  elapsed 
they  are  in  a  state  of  war  without  any  denunciation,  for  they  are  in 
the  former  condition,  wherein  they  were  before  the  truce  made. 

(a)  See  the  manner  of  it  described  by  Dioni/s.  Hal.  Lib.  II.  Ans-el.  Lib.  XVI.  cap.  4. 
and  Liv.  Lib.  I.  §  32.  whereby  it  appears,  that  the  thirty-three  days  of  dilation  intervened 
between  the  demanding;  reparation  and  the  indiction. 

(i)  See  Plin.  Lib.  XXII.  cap.  2. 
VOL.  I. — 19 


161  HISTORIA  PLACITORUM  CORONiE. 

2.  In  case  a  foreign  prince  in  peace  violate  that  peace  and  becomes 
the  aggressor,  or  invades  the  other,  tho  without  any  denunciation, 
the  prince  that  is  upon  his  defense  was  not  bound,  neither  was  it 
necessary  for  him  to  make  a  solemn  denunciation  or  proclamation  of 
war,  for  this  solemnity  of  denunciation  was  thought  only  requisite 
on  the  part  of  the  aggressor. 

3,  If  after  reparation  of  injuries  sought,  instead  of  reparation  of 
the  former,  new  are  committed  by  the  adverse  prince,  as  killing  of 
an  embassador,  contemptuous  rejection  &f  all  reparation  or  mediation 
touching  it,  great  provisions  of  hostility,  or  the  like,  there,  this  denun- 
ciation or  dilation  was  not  requisite  in  the  aggressor;  but  when  all 
is  done,  supreme  princes  or  states  take  themselves  to  be  judges  of 
public  injuries,  and  of  the  manner,  means  and  seasons  for  their  repa- 
rations, and  what  they  judge  safest  and  most  for  their  advantage  is 
most  commonly  done  in  these  cases,  and  they  seldom  want  fair 
declarations  to  justify  themselves  therein. 

And  therefore  whether  these  handsome  methods  be  ob- 
r  162]]  served  or  not,  yet  if  de facto  there  be  a  war  between  princes, 
they  and  their  subjects  are  in  a  state  of  hostility,  and  they 
are  in  the  condition  of  enemies  {hostes)  to  each  other;  but  now  for 
the  most  pai^t  these  antient  solemnities  are  antiquated,  I  come  there- 
fore to  the  practice  of  our  own  country  and  modern  arms,  and  what 
we  may  observe  from  our  own  books,  history,  and  monuments. 

We  may  observe  in  the  wars  we  have  had  with  foreign  countries, 
that  they  have  been  of  two  kinds,  viz.  special  and  gene-ral :  special 
kinds  of  war  are  that,  which  we  usually  call  marque  or  reprisal,  and 
these  again  of  two  kinds,  1.  Particular,  granted  to  some  particular 
persons  upon  particular  occasions  to  right  themselves,  for  which  vide 
statute  4  H.  5.  cap.  7.  but  this  is  not  the  proper  place  to  treat  touch- 
ing it.  2.  General  marque  or  reprisal,  which  tho  it  hath  the  effect  of 
a  war,  yet  it  is  not  a  regular  war,  and  it  differs  in  these  two  instances : 

1.  Regularly  it  is  not  lawful  for  any  person  by  aggression  to  take  the 
ship  or  goods  of  the  adverse  party,  unless  he  hath  a  commission  from 
the  king,  the  admiral,  or  those  that  are  specially  appointed  thereunto. 

2.  It  doth  not  make  the  two  nations  in  a  perfect  state  of  hostility 
between  tiiem,  tho  they  mutually  take  one  from  another,  as  enemies, 
and  many  times  in  process  of  time  these  general  reprisals  grow  into  a 
very  formed  war:  and  this  was  the  condition  of  the  war  between  us 
and  the  Dutch  22  February  anno  1664.  the  fust  beginning  whereof 
was  l)y  that  act  of  council,  which  instituted  only  a  kind  of  universal 
reprisal,  and  there  were  particular  reasons  of  slate  for  it;  but  in  process 
of  time  it  grew  into  a  very  war,  and  that  without  any  war  solemnly 
denounced;  and  therefore  by  the  statute  of  17  Car.  2.  cap.  5.  Dole- 
nian  and  others,  that  were  in  Holland,  were  declared  to  have  trai- 
torously adhered  to  the  king's  enemies,  and  were  attainted  of  treason, 
unless  they  rendered  tliemselves  by  a  day  certain,  and  all  others,  that 
served  the  states  of  the  united  provinces  during  the  continuance  of 
the  war,  soldiers  or  seamen,  by  sea  or  land,  and  not  returning  by  a 
time  certain,  were  attainted  of  treason;  and  this  had  all  the  effects 


niSTORIA  PLACITORUM  CORONA.  163 

of  war  and  hostility:  the  aoods  of  the  English  taken  by  the  Dutch 
and  brought  z;z/ra;;ra?5/r/m  the  property  was  wholly  changed,  and 
tho  retaken  again,  should  not  be  restored  again  to  the  first  owner, 
according  as  iu  captures  by  enemies,  7  E.  4.  14.  22  E.  3.  16.  and 
so  it  was  practised  during  that  war. 

A  general  war  is  of  two  kinds:  1.  Bellum  solemnit^r  denuntia- 
ium,  or  helium  non  solemnittr  de nun tia turn;  the  former  sort  of 
war  is,  when  war  iS'  solemnly  declared  or  proclaimed  by  our  king 
against  another  prince  or  state  ;[2]  thus  after  the  pacification  be- 
tween the  king  and  the  Dutch  at  Breda,  upon  new  injuries  done  to 
iVs  by  the  Dutch  the  king  by  his  printed  declaration  1671.  declared 
war  against  them;  and  this  is  the  most  formal  solemnity  of  a  war, 
that  is  now  in  use. 

A  war  that  is  non  solemnitcr  denuntiaium  is,  when  two  nations 
slip  suddenly  into  a  war  without  any  solemnity,  and  this  ordinarily 
happeneth  among  us;  the  first  Dutch  war  was  a  real  war,  and  yet 
it  began  barely  upon  general  letters  of  marque:  again,  if  a  foreign 
prince  invades  our  coasts,  or  sets  upon  the  king's  navy  at  sea,  here- 
upon a  real,  tho  not  solemn  war  may  and  hath  formerly  arisen,  and 
therefore  to  prove  a  nation  to  be  in  enmity  to  England,  or  to  prove 
a  person  to  be  an  alien  enemy,  there  is  no  necessity  of  showing  any 
war  proclaimed,  but  it  may  be  averred,  and  so  put  upon  trial  by  the 
country,  whether  there  was  a  war  or  not;  and  therefore  P.  31  Eliz. 
in  justice  Owen^s  reports,(c)  in  an  action  of  debt  the  defendant  plead- 
ed, that  the  plaintiff  was  an  alien  born  in  Gaunt  under  the  obedi- 
ence of  the  king  of  Spain,  enemy  of  the  queen,  the  plea  was  ruled 
good,  tho  he  shewed  not,  that  any  war  was  proclaimed  between  the 
two  realms;  and  according  is  the  pleading  7  E.  4.  13,  Rasters  En- 
tries, Trespass  per  a  lien,  (d) 

And  ni  very  deed  there  was  a  state  of  war  between  the  crowns  of 
England  and  Spain,  and  the  Spaniards  were  actual  enemies,  espe- 
cially after  the  attempt  of  invasion  in  88.  by  the  Spanish  Armadaj 
and  yet  there  was  no  war  declared  or  proclaimed  between  the  two 
crowns,as  appears  by  Camden  sith  anno  31.(e)  ibidem  p. 
404.  8f  ibidem  p.  466. (/)  so  that  a  state  of  war  may  be  f  164  3 
between  two  kingdoms  without  any  proclamation  or  indic- 
tion  thereof  or  other  matter  of  record  to  prove  it. 

And  therefore  in  the  case  in  question  touching  treason  it  shall  upon 
the  trial  be  inquired  by  the  jury,  whether  the  person,  to  whom  the 
party  indicted  adhered,  were  an  enemy  or  not,  and  in  order  to  that, 
whether  there  were  a  war  between  the  king  of  England  and  that 
other  prince,  whereunto  the  party  adheres,  this  is  purely  a  question 
of  fact  and  triable   by  the  jury, [3]  and  accordingly  is  the  book  19 

(c)  Owen,  4,5.  ((/)  Rast.  Entr.  p.  605.  d.  252.  6. 

(e)   Viz.  1588.  (/;  Sub  anno  1592. 

[2]  See  Anstey's  Cons,  of  Engl.  316.  Grot.  L.  3.  c.  3.  s.  11. 

[3]  The  fact  ol  the  persons  adhered  to  being  enemies,  may  be  proved  b)'  the  produc- 
tion nf  tlie  gnzctte  containing  the  proclamation,  if  war  were  formally  declared  ;  or  public 
notoriety  is  sufficient  evidence  of  it.  Fast,  219. 


164  HISTORIA  PLACITORUM  CORONA. 

E.  4.  6.  and  the  reason  is  plain,  because  it  may  fall  out,  that  tho 
there  were  a  league  between  the  king  of  England  and  a  foreign 
prince,  yet  the  war  may  be  begun  by  the  foreign  prince ;  again,  sup- 
pose we,  that  the  king  of  England  and  the  king  of  France  be  in 
league,  and  no  breach  thereof  between  the  two  kings,  yet  if  a  subject 
born  of  the  king  of  France  makes  war  upQU  the  king  of  England^ 
a  subject  of  the  king  of  England  adhering  to  him  is  a  traitor  within 
this  law,  and  yet  the  Frenchinan,  that  made  the  war,  is  not  a  traitor 
but  an  enemy,  and  shall  be  dealt  with  as  an  enemy  by  martial  law, 
if  taken  :[4]  this  was  the  case  of  the  duke  oi  Norfolk  adhering  to  the 
lord  Herise  a  subject  of  the  king  of  Scots  in  amity  with  queen  Eliza- 
beth, that  made  an  actual  invasion  upon  England  without  the  king's 
commission.  M  13  4-  14  Eliz.  Co.  P.  C.  p.  l\.  Camd.  Eliz.  sub 
anno  I51\,{g)  14  Eliz.  p.  175.  and  the  case  of  Perkin  fVarbeck  a. 
Frenchman,  7  Co.  Rep.  Calvin'' s  case. (A)  6  Dy.  145.  a.  S'her ley's 
case  ;{i)  so  that  an  enemy  extends  farther  than  a  king  or  state  in  en- 
mity, namely  an  alien  coming  into  England  in  hostility. 

II.  In  the  next  place  I  shall  consider  what  shall  be  said  a  person 
adhering,  and  also  what  shall  be  adhering. 

If  a  foreign  prince  be  in  actual  war  against  the  king  of  England, 
any  subject  of  that  prince  under  his  protection  is  presunied  to  be 
adhering  to  him,  but  he  is  not  a  person  within  this  act,  for 
\_  165  3  if  he  betaken,  he  shall  be  dealt  with  as  an  enemy,  viz.  he 
shall  be  ransomed,  and  his  goods  within  this  realm  seised  to 
the  used  of  the  king.  When  king  John  was  devested  of  the  duchy 
of  Normandy  by  the  king  of  France,  and  thereupon  the  Normans 
forsook  the  aUigeance  of  the  king  of  England,  which  was  due  to 
him,  as  duke  of  Norviandy ,  all  the  lands  of  the  Normans  in  Eng-. 
land  were  seised  into  the  king's  hands,  and  thence  grew  first  the 
escheat  de  terris  Normannoruni  mentioned  prserogaliva  regis{k) 
cap.  12.  and  the  style  of  such  forfeiture  was  usually,  quia  recessit  h, 
sei'vitio  nostra  8,-  adhsesit  inimicis  nostris  in  Normannia,  Clans. 
6  John.  m.  19.  jjro  Eustachia  uxore  Lurce  fiV  Johannis,  Claus'. 
S  John.  m.  5.  pro  JIbbate  Cluniacensi:  see  the  reason  thereof  before 
cap.  10.  they  were  ad  fidem  utriusque  regis. 

If  there  be  war  between  the  king  of  England  and  the  king  of 
France,  those  Englishmen,  that  live  in  i^r««ce  before  the  war,  and 
continue  there  after,  are  not*  simply  upon  that  account  adherents  to 
the  king's  enemies,  unless  they  actually  assist  him  in  his  wars,  or  at 
least  refuse  to  return  upon  privy  seal,  or  upon  proclamation  and 
notice  thereof  into  England;  and  this  refusal,  tho  it  is  an  evidence 
of  adherence,  seems  not  to  be  simply  in  itself  an  adherence:  this 
appears  plainly  by  the  statute  of  Magna  Chartu,  cap.  30. 

If  a  subject  of  a  foreign  princa  hath  lived  here  in  England  under 

(g)  And  also  snh  anno  X^^l'i.in  principio.  -  (//)  7  Co.  &,  b. 

(i)  7  Co.  Calvin's  case,  6.  a.  {k)  U  E.2. 

[4]  Judge  Tucker  douljts  whether  tliis  would  be  treason  within  the  Constitution  ot'tlie 
United  Slates.  4  Tuck.  Bl.  Com.  Apdx.  33. 


HISTORIA  PLACITORUM  CORONA.  165 

the  protection  of  the  Idng  of  England,  and  so  continues  after  a  war 
proclaimed,  and  partakes  of  all  the  l)enefits  of  a  suhject,  and  yet 
secretly  practiseth  witli  the  king  of  France,  and  assists  him  before 
he  hath  left  this  kinsdom,  or  openly  renounced  his  subjection  to  the 
crown  o(  England,  i\\\s  man  seems  to  be  an  adherent  within  this 
act,  and  commits  treason  thereby  :[5]  tamen  qusere,  vide  Dy.  144.  a 
SAeriei/'s  case ;  and  the  like  law  seems  to  be  of  an  enemy  coming 
hither  and  staying  here  under  the  king's  letters  of  safe  conduct: 
qusere,  vide  statute  18  H.  6.  cap.  4.  20  H.  6.  cap.  1. 

If  there  be  a  war  between  the  king  of  England  and  France,  and 
then  a  temporary  truce  is  made,  and  within  the  time  of  that  truce 
an  Englishman  goes  into  France,  and  stays  there  and  re- 
turns before  the  truce  is  expired,  this  is  not  an  adherence  to  [  166  J 
an  enemy  within  this  statute,  Clans.  7  E.  3.  part  1.  m.  9. 
pro  Johanne  Poynter,  who  had  an  amoveas  manus  cum  exitibus, 
his  lauds  having  been  seised  for  that  cause:  but  this  record  implies, 
that  if  during  his  stay  (it  was  in  Scotland)  he  had  confederated  or 
conspired  with  the  enemy  or  assisted  them  in  order  to  their  further 
hostility,  this  might  have  been  an  adherence:  7iota,  the  reason, 
"  Quia  prsedictus  Johannes  tempore  treugarum  inter  patrem  nos- 
trum Ss'  Robertum  de  Bruys  ivil  in  Scotiam  per  prxceptum  Andreas 
de  Harcla  ad  pictandum  qnandam  imaginem,  quo  tempore  bene 
licuit  unicuique  de  Anglia  intrare  in  Scotiam  per  licentiam  <§• 
literas  de  conductu  custodis  Marchiae,  4*  quod  idem  Johannes 
habuit  tales  literas  Andreas  de  Harcla,  4'  ibidern  talith^  vioram, 
fecit  per  unum  annum,  absque  eo,  quud  aliquo  tempore  Scotis  prse- 
dictis  fuit  adhserens,  <§•  quod  idem  Johannes  rediit  in  Angliam 
durantibus  treugis  prcedictis,  Si'  semper  hactenus  fuit  ad  pacem 
nostram  (§•  patris  nostri.''  Nota,  this  ifliidrew  Harcla  having  been 
created  earl  of  Carlisle  was  by  an  extrajudicial  military  sentence 
first  degraded,  and  then  had  judgment  of  high  treason  given  against 
him.     H.  \S  E.  2.  Rot.  34  in  dor  so  rex. 

If  the  king  of  England  and  the  king  of  France  be  in 
amity,  yet  if  a  subject  of  the  king  of  England  solicits  by  []  167  ] 
letters  the  king  of  France  to  invade  this  realm,  this  is  high 
treason :  it  was  the  case  of  cardinal  Poole,  who  wrote  a  book  to  that 
purpose  to  Charles  the  emperor.  Co.  P.  C.  p.  14.  It  is  certainly  an 
overt-act  to  prove  treason  in  compassing  the  king's  death,  but  it 
seems  not  an  overt-act  to  convict  him  of  adhering  to  the  king's 
enemies,  for  at  the  time  of  this  act  done  the  emperor  was  not  an 
enemy.  Co.  P.  C.  p.  14. 

If  an  Englishman  during  war  between  the  king  of  England  and 
France  be  taken  by  the  French,  and  there  swear  fealty  to  the  king  of 
France, \{'\i  be  done  voluntarily,  it  is  adhering  to  the  king's  enemies; 
but  if  it  be  done  for  fear  of  his  life,  and  that  he  returns,  as  soon  as 
he  might,  to  the  alligeance  of  the  crown  oi  England,  this  is 
not  an  adherence  to  the  king's  enemies  within  this  act.  [  168  ^ 
Claus.  7  E.  2,.  part  1.  m.  15.     John  Culwin's  land  being 

[5]  R.  V.  De  la  MoUe,  21  St.  Tr.  G87. 


168  HISTORIA  PLACITORUM  CORONA. 

seised  upon  this  account  there  was  ouster  le  main  cum  exitibus,  "Quia 
compertum  est  per  inquisirionem,  &c.  quod  Johannes  ad  fidetn  & 
pacem  nostram  extitit,  qiiod-que  idem  Johannes  captus  i'uit  de  guerra 
per  Scotos  inimicos  noslros,  &  in  prisona  in  Scotici  per  dictos  inimi- 
cos  nostros,  &  pro  vita  sua  salvanda  ad  fidem  dictornm  Scotorum  per 
dimidiimi  annum  extitit,  quodque  idem  Johannes  ^^osiedi  in  Jingliam, 
rediit,  &  ad  fidem  &  pacem  nostram  a  tempore  prsedicto  hactenus 
extitit ;"  tho  this  was  before  "^S  E.  3.  yet  the  instance  is  useful,  be- 
cause adhering  to  the  king's  enemies  was  then  treason. 

If  a  captain  or  other  officer,  that  hath  the  custody  of  any  of  the 
king's  castles  or  garrisons,  shall  treacherously  by  combination  with 
the  king's  enemies,  or  by  bribery  or  for  reward  deliver  them  up,  this 
is  adherence  to  the  king's  enemies.  This  was  the  case  of  William 
TVeston  for  delivering  up  the  castle  of  Oughtreivicke,  and  John  de 
Gomeneys  for  delivering  up  the  castle  oi  Jirdes  in  France,  hoih 
which  were  impeached  by  the  commons,  and  had  judgment  of  the 
lords  in  parliament,  Rot.  Par.  1  R.  2.  n.  40.  namely  William  Wes- 
ton to  be  drawn  and  hanged,  but  execution  was  respited,  que  le  roy 
n^est  uncore  enforme  del  manner  de  cest  judgement :  Gomeney^ s 
judgment  was  thus,  Les  seigneurs  in  plein  parlement  vous  adjudgent 
a  la  mort,  &  pur  ceo  qu'estes  gentlchome  &  banneret  &  aves  serve  le 
aiel  le  roy  en  ses  guerres,  &  n'estes  lige  home  nostre  seigneur  le  roy, 
vous  seres  decoUe  sans  autre  justyce  auer,  but  execution  was  re- 
spited.(m) 

And  note,  tho  the  charge  were  treason,  and  possibly  the  proofs 
might  probably  amoimt  to  it,  and  Walsingham  sub  anno  1  R.  2. 
tells  us  it  was  done  by  treason  ;  yet  the  reason  expressed  in  the 
judgment  against  Weston  is  only,  que  surrendists  le  dit  castle  de 
Oughtrewicke  al  enemies  nostre  seigneur  le  roy  avant  dits  sans  nul 
duresse  ou  defalt  de  victualls  contre  vous  ligeance  &  emprise  :  and 
the  like  reason  is  exprest  in  the  judgment  against  Gomeneys,  Vous 
emprists  a  sauement  garder  sans  les  surrendy  a  nully,  &c. 
[  169  ]  &  ore  vous  Johan  sans  nul  duresce  ou  defalt  de  victuals  ou 
de  artillery  ou  autres  choses  necessaries  pur  le  defence  de 
dits  ville  &  castle  de  t/irde  sans  commandment  nostre  seigneur  le  roy 
malement  I'auets  delivers  &  surrendres  al  enemies  nostre  seigneur  le 
roy  per  vostre  defalt  demesne  contre  tout  plain  de  droit  &  reason,  & 
encountre  vostre  emprises  suisdits,  &c. 

The  truth  is,  if  it  were  delivered  up  by  bribery  or  treachery,  it 
might  be  treason,  but  if  delivered  up  upon  cowardice  or  imprudence 
wiil)out  any  treachery,  tho  it  were  an  oifense  against  the  laws  of 
war,  and  the  party  subject  to  a  sentence  of  death  by  martial  law,  as 
it  once  happened  in  a  case  of  the  like  nature  in  the  late -times  of 
trouble, (n)  yet  it  is  not  treason  by  the  common  law,  unless  it  was 
done  by  treachery;  but  tho  this  sentence  was  given  in  terrorem,  yet 
it  was  not  executed  :  it  seems  to  be  a  kind  of  military  sentence,  tho' 

(m)  See  tlicse  cases  Stale  Tr.  Vol.  I.  f.  7!).'). 

(n)  This  was  the  case  of  Col.  Fienncs,  parliament  g'overnor  of  Bristol  for  cowardly 
surrendering  the  same  to  the  king's  forces.    Sue  Slate  Tr.  Vol.  I.  p.  745. 


HISTORIA  PLACITORUM  CORONA.  169 

given  in  parliament,  like  unto  that  of  the  baron  Graystock  governor 
o(  Berivick,{o)  who  travelled  into  France  without  the  king's  com- 
mandment, and  left  the  care  of, the  garrison  to  Robert  de  Ogle  a 
valiant  knight,  who  used  all  imaginable  courage  in  defense  thereof, 
but  it  was  lost  in  the  absence  of  the  baron  of  Graystock,  who  was 
thereupon  sentenced  to  death, because  Ite  had  undertaken  that  charge, 
and  yet  went  from  it  without  the  king's  command,  and  in  his  absence 
it  was  lost :  this  also  seems  rather  a  sentence  of  council  of  war,  than 
a  judgment  of  high  treason;  and  thus  far  touching  the  treason  of 
adhering  to  the  king's  enemies  within  the  land  and  without. 

Touching  the  trial  of  foreign  treason,  viz.  adhering  to  the  king's 
enemies,  as  also  for  compassing  the  king's  death  without  the  king- 
dom at  this  day,  the  statutes  of  35  H.  8.  cap.  2.  hath  sufficiently  pro- 
vided for  n.(p.)  P.  13.  Eh'z.  Dyer,  298,  300.  Story's  case; 
but  at  common  law  he  might  have  been  indicted  in  any  [  170  ] 
county  of  Englatid,  and  especially  where  the  offender's 
lands  lie,  if  he  have  any.   5  B.  2.  Trial  54. 

And  it  seems,  if  the  adhering  to  the  king's  enemies  were  upon  the 
narrow  seas,  this  is  an  adherence  to  the  king's  enemies  within  the 
realm,  and  tho  it  be  triable  by  a  special  commission  at  this  day- 
grounded  upon  the  statute  of  28  H.  8.  yet  at  common  law  it  might 
have  been  indicted  and  tried  in  any  adjacent  county  by  a  special 
commission  of  oyer  and  terminer,  for  the  narrow  seas  are  within  the 
king's  alligeance,  and  part  of  the  realm  of  England.  6  R.  3.  Protec- 
tion AQ.  Co.  Lit.  260. [6] 

(o)  See  this  case  State  Tr.  Vol.  I.  p.  797. 

(p)  Tliis  statute  gives  power  to  try  such  treasons  in  the  king's  bench  or  by  commis- 
sioners in  any  county  appointed  by  the  commission,  and  continues  in  force  notwithstand- 
ing 1^-2  Fh.  Sf  Mnr.  cap.  10.  which  reduces  the  methods  of  trial  for  treason  to  the 
course  of  the  common  law,  because  it  is  not  introduclive  of  a  new  law,  but  only  settles  a 
point,  that  was  before  doubtful  at  common  law ;  and  it  was  accordingly  so  resolved  ia 
Storie''s  case,  Dyer  298.  b.  Co.  F.  C.  p.  24. 


[6]  The  following  have  been  laid  down  as  overt  acts  of  adhering  to  the  king's  enemies. 
Every  assistance  given  by  the  king's  subjects  to  his  enemies,  unless  gi,ven  from  a  well 
grounded  apprehension  of  immediate  death  in  case  of  a  refusal,  Fost.  216.  Hav;k.  c.  17. 
s.^28;-to  join  the  king's  enemies  in  acts  of  hostility  against  his  allies.  Fust.  210.  R.  v. 
r  aughan,  Salk.G35 ;  to  join  tlie  enemy's  forces,  although  no  acts  of  hostility  be  committed 
by  them  either  against  the  king  or  his  allies,  Fos«.  218.  Salk.  634.  5  St.  Tr.  17 ;  to  raise 
troops  for  the  enemy,  R.  v.  Harding.  2  Ventr.  316 ;  to  deliver  up  the  king's  castles,  forts, 
or  ships  of  war  to  the  enemy  through  treachery,  or  in  combination  with  them,  Fost.  219. 
3  Inst.  10.  ante,  168;  to  detain  the  king's  castles,  &c.  if  done  in  confederacy  with  the 
enemy,  Fosi.  219;  to  send  money,  arms,  intelligence,  or  the  like,  to  the  king's  enemies, 
rost.  217,  although  such  money,  intelligence,  t^c.  be  intercepted  and  never  reach  them. 
R.  v.  Gt€gg,-10  St.  Tr.  Appdx.  77.  Fost.  198.  217.  R.  v.  Hensey,  Burr.  642.  R.  v.  Lord 
Frrston,  4  St.  Tr.  45.5.  R.  v.  Stone,  6  T.  R.  527. 

Lvcry  species  of  aid  and  comfort,  in  the  words  of  the  statute,  which  when  given  to  a 
rebel  within  the  realm,  would  make  the  person  gUilty  of  levying  war,  if  given  to  an  ene- 
my, whether  within  or  without  the  realm,  will  make  the  party  guilty  of  adhering  to  the 
king's  enemies.  1  East,  P.  C.  78.  Refusing  personal  assistance  to  the  king,  eitiicr  against 
rebels  or  an  invading  enemy,  is  not  an  adherence  within  the  statute,  though  a  high  mis- 
demeanor. 1  East,  P.  C.  8U.  Continuing  in  an  enemy's  country,  not  of  itself  an  adhe- 
rence;  unless  the  party  voluntarily  swears  fealty  to  the  enemy,  or  actually  assists  them 


170  HISTORIA  PLACITORUM  CORONA. 

in  the  war,  or  unless  he  refuses  to  return  home  upon  privy  seal,  or  proclamation,  or  notice 
thereof;  tiiough  Sucti  refusal  is  only  evidence  of  an  adhering.  1  East,  P,  C.  81.  It  is  no 
treas^on  to  relieve  a  rebel  out  of  the  realm,  id.  11. 

The  words  ''  adhering  to  their  enemies,  giving  them  aid  and  comfort,"  in  the  Constitu- 
tion of  tlie  United  States,  having  been  taken  from  the  25  Edw.  3.  must  receive,  it  is  con. 
ceived,  the  same  constructioa  which  is  given  to  them  in  that  statute.  2  Burros  Tr.  402. 
In  1778  and  1781,  tiicre  were  trials  for  treason  in  Pennsylvania,\\\  adhering  to  the  ene- 
mies of  the  State  and  of  the  United  States.  1  Dall.  33.  89.  2  id.  86.  The  United  Stales  v. 
Pryor,  3  W.  C.  C.  R.  234,  and  The  People  v,  lyynch  et  al.  11  Johns.  549,  are  the  only  two 
cases  tiiat  have  happened,  since  tiie  framing  of  the  Constitution,  of  tliis  species  of  treason. 
The  former  was  an  indictment  for  treason  in  adhering  to  "the  enemy,  charging  the' 
defendant,  amongst  other  things,  with  going  from  the  British  squadron  to  the  State  cf 
.Delaware,  with  intention  to  procure  provisions  for  the  squadron.  It  was  held  that  the 
going  from  the  squadron  to  the  shore  for  the  purpose  of  peaceably  procuring  provisions 
for  the  enemy,  did  not  amount  to  an  act  of  treason  ;  as  this  act  rested  in  intention  only, 
vviiich  is  not  punishable  by  our  laws.  Aliler,  if  a  person  has  carried  provisions  towards 
the  enemy,  with  intent  to  supply  him,  though  that  intention  should  be  defeated.  If  the 
intention  of  the  defendant  had  been  to  procure  provisions  for  the  enemy,  by  uniting  with 
him  in  hostilities  against  the  citizens  of  the  United  States,  his  progressing  towards  the 
shore  would  have  heen  an  overt  aqt  of  adhering  to  the  enemy,  though  no  other  act  was 
committed.  In  The  People  v.  Lynch,  the  defendants  were  acquitted,  on  the  ground  that 
the  offence  of  adhering  and  giving  aid  and  comfort  to  the  public  enemies  of  the  United 
States,  is  not  treason  against  the  people  of  the  State  of  New  York.  See  4  Tucker's  Bl. 
Com,  Apdx.  32. 


CHAPTER  XVI.  ^ 

CONCERNING  TREASON  IN  COUNTERFEITING  THE  GREAT  SEAL  OR 

PRIVV  SEAL. 

First,  I  shall  upon  this  article  consider  how  the  common  law  stood 
before  this  statute,  and  what  kind  of  offense  this  was  antiently.  and 
how  punished.  Seco)idly,  I  shaU  consider  how  the  law  hath  been 
taken  touching  this  otfense  since  the  statute,  and  how  punished. 

I.  ThQ  great  seal  of  England  is  the  great  instrument,'whereby 
the  king  dispenseth  the  great  acts  of  his  government  and  the  adminis-^ 
tration  of  justice  ;  under  this  seal  the  great  commissions  to  his 
justices  and  others  are  passed ;  original  writs  and  mandates,  and 
those  processes  that  issue  out  of  chancery,  all  the  king's  grants  and 
charters  of  lands,  liberties,  franchises,  honours,  pardons  are  passed 
under  this  seal.[l] 

There  is  or  should  be  always  a  tnemorandum  made  upoil 
[  171  ]  the  close  rolls  of  the  breaking  of  the  old  seal  and  making 
and  delivering  of  the  new;  and  by  the  very  delivery  of  this 
seal  the  oilice  of  keeper  of  the  great  seal  is  constituted,  and  most 
ordinarily  is  to  the  same  person,  that  is  lord  chancellor:  sometimes 
the  custody  of  the  great  seal  is  in  one  person,  and  the  office  of  Idrd 
chancellor  in  another;  but  always  a  memorandum  of  the  delivery 
thereof  entered  upon  the  close  rolls.  The  great  seal  consists  ordina- 
rily of  two  impressions,  the  one  the  very  great  seal  itself  with  the 

[1]  2  Bl  Com.  305.  346. 


HISTQRIA  PLACITORUM  CORONA..  171 

king's  effigies  instamped  on  it,  the  other  is  commonly  called  pes 
sigilli,  and  sometimes  in  our  old  books  called  k  large,  which  is  the 
impression  of  the  king's  arms  in  the  figure  of  a  target,  which  is  used 
in  matters  of  smaller  moment  as  certificates,  which  are  usually- 
pleaded  sub  pede  sigilli. 

Antiently,  when  the  king  travelled  into  Normandy,  France,  or 
other  foreign  kingdoms  upon  occasion  of  war  or  the  Hke,  there  were 
two  great  "seals,  one  went  along  with  the  king,  the  other  was  left 
with  the  ctistos  regni,  or  sometimes  with  the  chancellor,  if  he  went 
not  along  with  the  king,  for  the  dispatch  of  the  affairs  of  the  king- 
dom, and  then  the  king  upon  his  return  sometimes  redelivered  the 
old  seal  and  took  in  the  new,  Clans.  20  E.  3.  part  2.  m.  26.  dors. 
Clans.  19  E.  3.  part  2.  m.  23  4-  10.  dors.  Claus.  20  E.  2,. part  2. 
m.  IS.  dors.  Sf'frequentissime  alibi  in  dorse  clausorum. 

The  privy  seal  is  ordinarily  a  warrant  for  the  passing  of  things 
under  the  great  seal,  sometimes  a  warrant  to  issue  treasure,  to  make 
allowances,  &c.  vide  11  Co.  Rep.  92.  the  earl  of  Devonshire's  case; 
and  this  seahis  ordinarily  in  the  custody  of  the  lord  keeper  of  the 
privy  seal  or  commissioners  thereunto  appointed. 

Besides  these  seals  of  greater  moment  there  are  other  seals  of  the 
king,  as  the  privy  signet, [2^  the  particular  seals  of  the  several  courts, 
that  of  the  king^s  bench  and  common  pleas  in  custody  of  the  chief 
justices  of  either  court,  or  their  clerks  appointed  for  that  purpose,  the 
seal  of  the  exchequer  in  the  custody  of  the  chancellor  of  the  exche- 
quer, the  seal  of  the  duchy  of  Lancaster  in  the  custody  of 
the  chancellor  of  the  duchy,  the  seal  of  the  county  palatine  [  172  j] 
of  Lancaster  in  the  custody  of  the  chancellor  of  the  county- 
palatine,  which  are  sometimes  in  the  same  person,  the  seals  of  county 
palatine  of  Chester,  of  the  several  justices  of  assise,  oyer  and  terminer 
and  gaol-delivery,  the  king's  seal  of  statutes  and  recognizances,  the 
seal  of  the  cocket ;  and  for  the  most  part  these  seals  are  delivered  by 
the  king's  order  signified  sometimes  by  his  privy  signet,  sometimes 
by  his  secretaries,  but  antiently  the  most  of  them  were  delivered  by 
the  king  in  person  to  the  several  persons,  that  had  the  custody  there- 
of, and  a  viemorandum  made  thereof  upon  the  back  of  the  close 
roll.  Claus.  43.  E.  3.  m.  IS.  dors. 

The  antient  manner  of  delivery  of  the  seal  for  statutes  merchant, 
and  probably  for  other  seals  of  like  nature  was  by  the  king  in  per- 
son as  before,  or  by  a  close  writ  and  memorandum  under  the  great 
seal.,  T.  \%  E.  \.  it  is  commanded,  that  for  the  future  it  should  be 
delivered  under  the  seal  of  the  chancellor  of  the  exchequer. 

The  manner  antiently  of  delivering  the  judicial  seals  of  the  king's 
bench  and  common  pleas  was  by  the  king  or  chancellor  to  the  chief 
justices  respectively,  and  in  like  manner  the  judicial  seal  of  the  ex- 
chequer to  the  chancellor  of  the  exchequer  ;  these  were  ordinarily 

[2]  For  the  nature  of  the  signet  and  privy  seals,  see  the  case  Re  KicktW  Patent, 
1  riiiU.  Ch.  Rep.  36. 

VOL.    1.-^20 


172  HISTORIA  PLACITORUM  CORONiE. 

ill  two  pieces,  Claus.  43  E.  3.  m.  18.  dors.  The  profits  of  the  seals 
belonged  to  the  king,  except  the  seventh  penny,  which  is  the  fee  ,of 
either  chief  justice  ;(a)  and  when  the  king  farmed  out  the  profits  of 

the  seal  of  either  court,  sometimes  one  piece  remained  with 
[173]  the  chief  justice  or  his  deputy,  the  other  piece  remained 

with  the  farmer  or  his  deputy:  these  profits  of  the  seals  of 
the  courts  of  the  king's  bencli  and  common  pleas  were  let  for  1000/. 
per  a?imwi{b)  by  the  king.  M.  18  E.  3.  EoL  35.  Eex.  P.  20  E.  3. 
Eut.  87.  T.  22  E.  3.  Eat.  115.  M.  23  E.  3.  EoL  31.  coram  rege.{c) 

(a)  The  antient  fee  to  the  cliief  justice  was  one  penny  for  every  writ,  as  appears  from 
two  of  the  records  here  quoted  by  our  author,  viz.  20  E.  3.  Rot.  87.  22  E.  3.  Rot.  115. 
tlie  first  of  these  is  a  grant  to  Walter  of  Yarmouth  of  the  profits  of  the  seals  for  ten 
years,  in  consideration  tliat  the  said  Walter  should  pay  to  the  clerk  of  the  hanaper  for  the 
king's  use  250  marcs  every  year,  and  should  likewise  discharge  a  debt  of  the  king's  of 
2000Z.  by  the  yearly  payment  of  200Z.  the  said  Walter  to  be  allowed  every  year  cent 
solcls  for  his  expenses  in  sealing  writs;  all  writs  ad  sectam  regis,  Sfc.  to  pay  no  fees,  Et 
que  les  justices  preignent  »«  denier  dii  brief  per  lour  sealx  en  manere  come  ad  este  use 
en  temps  passe. 

Tlie  latter  is  a  grant  of  the  king  (upon  his  having  resumed  the  seals  on  account  of 
some  misdemeanor  committed  by  Walter  of  Yannouih)  to  John  de  Padebury  and  Henry 
de  SulihuU,  reddendo  inde  regi  de  claro  per  annum  ducentas  &  quater  viginli  marcas 
per  manus  clerici  hanaperii,  writs  ad  sectam  regis,  &c.  to  pay  no  tees,  &  quod  justitiarii 
nostri  in  placeis  illis  percipiant  iiniim  denarium  de  breyi  pro  sigillis  suis,  prout  ibidem 
hactenus  est  usitatum:  it  should  seem  therefore,  as  if  the  person  employed  by  our  author 
to  consult  the  record  mistook  the  word  vn  in  the  first  grant  for  a  numeral  vii,  and  that 
this  was  the  occasion  of  his  making  the  seventh  penny  to  be  the  fee  of  the  cliief  justice. 

(//)  These  profits  were  not  let  for  above  tliree  or  four  hundred  pounds  per  annum,  as 
appears  not  only  from  tlie  above-mentioned  cases,  (the  highest  of  which  is  200/.  and  250 
ma.rks  per  annum,  which  is  no  more  than  366/.  13s.  4^/.)  but  also  from  the  18  E.  3.  Rot, 
35.  where  the  king  signifies  by  writ  20  Oclob.  to  his  justices,  that  he  had  granted  to 
Matthew  Canaceon  and  his  assigns  toturii  proficuum  ad  se  de  sigillis  omnium  breviurn 
judicialium  de  banco  suo  &  banco  communi  exeuntium  pcrtinens,  usque  ad  terininum 
decern  annorum,  in  valorem  trescentarum  librarum  per  annum,  de  quibus  ipsi  solvent  ad 
opus  regis  custodi  hanaperii  cancellaria;  quolibet  dictorum  decern  annorum  centum  libras 
de  exilibus  breviurn  prsedictorum,  tfc  rescrvabunt  penes  se  totum  proficuum  residuum  de  ■ 
brevibus  supradictis  durante  dicto  termino  in  recompcnsalionem  decern  [duo]  milliurtf 
librarum  stcrlingorum,  de  quibus  prfedictus  Matlheus  in  debitis,  in  quibus  rex  certis  per^ 
sonis  in  ducatu  Aquitanie  tenebatur,  assumpsit  rcgem  acquictare  &  exonerare ;  ita 
semper  quod  brevia  ad  sectam  &  pro  cominodo  regis  per  visum  &  testimonium  illorum, 
qui  pro  rege  prosequu*tur  ac  brevia  pro  hominibus  de  curiis  regis,  &,  pauperibus  homi- 
nibus  facta  Si  faeienda  absque  aliquo  inde  solvendo  dcliberentur,  prout  hactenus  in  can- 
cellaria  fieri  consuevit.  Et  sciendum  quod  eodem  20  die  Oclob.  Rohcitus  de  Sadyug- 
ton  Cancellar'  domini  regis  liberavil  Willielino  Scot  [capitali  justitiario]  apud  Westm^ 
quoddarn  sigilluin  domini  regis  pro  brevibus  prajdictis  in  banco  domini  regis  sigillandis, 
cnjus  nnam  i);irlcm  idem  Wiliielutus  Scot  liberavit  cuidam  Rogero  dc  Merlawe,  deputato 
dicti  Mattlici  Cuuaceon  jurato,  aliani  vcio  partem  ejusdem  sigilli  penes  so  ipsum  reti- 
nendo  ;  Et  dictum  est  eidem  Rogero,  quod  ollicio  prscdieto  l)cnc  &  fiilcliter  intendat 
secundum  formam  &  conditioneni  in  brevi  pra;dicto  contentas  pericqlo  quod  incuinbit,  &-C. 

Allho  the  consideration  is  here  said  to  be  the  discharging  of  a  debt  of  ten  thousand 
pounds,  (which  probably  led  our  author  to  tliink  the  jjrofits  were  let  at  lOOOl.  per  annum, 
so  that  in  ten  years  time  that  debt  might  be  discharged)  yet  the  annual  produce  of  tlie 
seals  being  no  more  than  300/.  one  hundred  ^hereof  was  to  be  paid  yearly  for  the  king's 
use,  it  seems  to  me  [iretty  plain,  that  the  king's  debt,  which  he  undertook  to  ])ay,  conid 
be  only  two  and  not  ten  thousand  pounds  ;  what  strengtlicus  this  observation  is,  that  tlii? 
indentures  of  agreement  being  in  French,  it  was  very  easy  to  mistake  deux  for  dix. 

(r)  This  was  a  grant  of  the  seals  of  the  king's  bench  and  common  pleas  to  Anthony 
Buclie  for  seven  years  in  recouipensationem  se/ilingentarum  marcarum  (due  to  him  on  an 
annuity  formerly  granted)  at  the  rate  of  200/.  jxr  annum  for  the  two  first  years  of  the 
said  term,  and  200  marks  per  annum  for  the  five  remaining  years,  the  said  Anthony  to 


HISTORIA  PLACITORUM  CORONA.  173 

Many  times  the  justices  issued  process  under  their  own  seals  unto 
the  sheriffs :  this  was  complained  of  inter  petittiones  par- 
liamenti  12  E.  3.  n.  6.  by  the  chancellor  of  the  exchequer  [  174  3 
and  clerk  of  the  hanaper,  as  a  derogation  to  the  king's  profit, 
and  contrary  to  the  duty  of  the  sheriff,  who,  by  his  oath,  is  bound  to 
receive  no  writs,  bat  under  the  king's  seal;  the  answer  is,  Soit  briefe 
mand'  a  justic'  de  common  banc  contenarit  I'effect  de  petition,  & 
quils  pur  lour  advisement  facent  tiel  remedy  en  lour  place,  come  ils 
verront,  qe  soit  a  faire  a  profit  du  roy. 

And  it  seems  most  usual,  that  since  that  time  judicial  process  not 
only  in  those  greater  courts,  but  in  most  other  courts  issued  under 
the  king's  seals  thereunto  deputed,  yet  justices  of  assise  and  gaol- 
delivery  sometimes -make  their  precaff)ts  under  their  own  seals:  vide 
Judicial  Register,  34,  35,  41,  43,  73,  84.  vide  pur  ceo  Rot.  Pari. 
25  E.  3.  71.  25.  a  petition  that  judicial  process  out  of  the  king's  bench 
and  common  pleas  might  issue  under  the  seal  of  the  chief  justices, 
as  is  used  in  eyre,  assises,  <5'  oyer  8^'  terminer,  but  denied. 

But  to  return  to  the  business  of  the  great  and  privy  seal. 

The  great  seal  which  Matthew  Paris{d)  sub  anno  1250.  well 
calls  {clavis  regni)  hath  been  with  great  care  and  solemnity  kept  and 
used,  and  therefore  antiently,  when  there  was  any  change  made  of 
the  great  seal,  there  was  not  only  a  viemarandum  made  thereof //i 
dorso  chiusortim  cancellarise,  and  a  public  notification  thereof  in  the 
court  of  chancery,  but  public  proclamation  was  made  thereof.  Claus. 
1  E.  3.  part  2  m.  11.  dorso. 

Yet  in  cases  of  speed  and  necessity,  and  sometimes  for  distinc- 
tion's sake  the  king  used  a  private  seal  for  such  occasions,  which 
were  to  be  passed  under  the  great  seal. 

King  John  died,  his  son  king  Henry  III.  being  but  about  ten  years 
old,  from  the  beginning  of  his  reign  until  3  H.  3.  all  grants  passed 
Under  the  seal  of  the  earl  marshal,  that  was  his  protector  or  guardian, 
but  in  the  king's  name,  viz.  In  cujus  rei  testimonium  has  literas 
nostras  sigillo  comitis  mariscalli  rectoris  nostri  &  regni  nostri  sigil- 
latas,  quia  nondum  sigillum  habuiraus,  vobis  mittimus,  teste  Wil-' 
lie/mo  comite  mariscallo.  This  seal  he  continued  till  the  third  year 
of  his  reign,  Claus.  3  H.  3.  m.  14.  hie  incepit  sigillum 
regis  currere:  and  in  the  same  third  year,  viz.  Fat.  3  U.  [  175  J 
3.  m.  6.  there  was  a  provision  made  in  parliament  for  the 
discrimination  of  thosg  charters,  that  passed  during  his  minority  and 
after  his  full  age,  in  these  words:  Henricus  dei  gratia,  S^-c.  Sciatis 
quod  provisum  est  per  commune  consilium  regni  nostri,  quod  nullce 
carta,  nulla}  literae  patentes  de  confirmatione,  alienatione,  venditione 
vel  donatione,  seu  de  aliqua  re,  quse  cedere  possit  in  perpetuitatem, 
sigillcntur  magno  sigillo  nostro  usque  ad  astatemnostramcompletam. 
Teste,  4'c."  and  after  the  setting  down  of  divers  witnesses  are  these 

pay  to  tlie  clerk  of  the  hanaper  for  the  king's  use  one  [two]  hundred  marks  per  annum 
for  the  two  first  years,  and  one  hundred  marks  per  annum  for  the  five  remaining  years; 
and  the  king  tliereupon  sends  his  writ  de  admittendo  praedictum  Antonium  vel  ejus 
attorn'  ad  oliicium  prffidiclutn  modo  debito  faciendum;  and  he  was  admitted  accordingly. 
(</)/).  783. 


]75  HISTORIA  PLACITORUM  CORONA. 

words,  "  Provisum  est  etiam  per  commune  consilium  regni  nostri  & 
coram  omnibus  praedictis,  quod  si  aliqute  cartse  velaliqufe  literse  paten- 
tes  factae  secundum  aliquam  pi'Ecdictarum  formarum  sigillata3  iuvenian- 
tur  praidicto  sigiilo,  irritee  habeantur  &  inanes,  festibus  praedictis." 

It  appears  Clause  20.  E.  2.  m.  3.  dor-'i.  in  tlie  beginning  of  that 
miserable  tragedy,  that  the  26th  of  October  20  E.  3.  the  king  flying 
from  his  wife  and  son,  who  was  afterwards  king,  a  great  number  of 
lords  and  others  chose  Edward  the  king's  eldest  son  to  be  custom 
regni,  supposing  the  king  to  be  out  of  the  kingdom;  at  that  time  the 
chancellor,  together  with  the  great  seal  were  with  the  king,  and  the 
new  custos  regni  ea,  qua3  juris  fuerent,  sub  sigiilo  suo  privato  in  cus- 
todia  Aom\m  Robert i  de  JVyvill  c\ex'\Q.\  sui  existent',  eo  quod  aliud 
sigillum  pro  dicto  regimine  ad  tunc  non  habuit,exercere  incepit  post- 
modum  vero  20  die  Novcmb.  proxime  sequent',  captis  inimicis  prse- 
dictis  &  dicto  rege  in  regmim  revertente,  upon  a  messuage  sent  to  the 
king  for  the  seal  the  king  thereupon  sent  t)ie  great  seal  to  his  wife 
and  son,  ut  non  solum  ea,  qua;  pro  jure  &  pace  essent  facienda,  sed 
etiam  qua3  gratise  forent,  fieri  facerent;  the  seal  was  brought  to  them 
2Q  Novemb.  and  the  morrow  being  the  feast  of  St.  Andrew  it  was 
opened  by  the  queen  and  her  son,  and  delivered  to  the  bishop  of 
Norwic/i:  and  it  is  to  be  observed,  that  a  parliament  was  summoned 
between  the  26th  of  October  and  the  26th  of  November  in  the  name 
of  the  king,  but  to  be  held  before  the  queen  and  the  cnstos  regni  in 
gtiindena  sctJicti  Jindrese,  which  summons  must  needs  be 
\_  176  ]  under  his  own  private  seal ;  but  the  3d  of  Becember  the 
great  seal  being  then  in  their  power  it  was  prorogued  unto 
the  morrow  oi  Epiphany:  the  first  summons  is  recited  in  tJie  writ 
oi prorogation,  but  it  is  not  entered  of  record,  for  it  was  a  hasty  con- 
fused business,  neither  had  the  rolls  of  the  chancery  in  their  hands  to 
make  any  entry  of  it;  and  if  they  had  had  them,  yet  it  would  have 
been  irregular,  and  not  have  amended  the  matter:  all  that  I  shall 
farther  add  concerning  these  two  instances  is,  that  neither  the.seat 
of  William  earl  Marshal  used  by  Henry  III.  nor  the  private  se^l 
of  prince  Edward  were  great  seals  within  this  statute,  whereof  the 
counterfeiting  might  be  high  treason. 

When  the  king  dies,  tho  the  office  of  keeper  of  the  great  seal 
expires,  as  well  as  all  commissions  to  sheriffs  and  justices,  yet  the 
great  seal  of  the  last  king  continues  the  great  seal  of  England,  till 
another  be  made  and  delivered. 

King  Edward  III.  began  his  reign  the  25th  o{  January,  he  made 
the  bishop  of  Ely  his  chancellor  the  2Sth  o(  January,  it  was  not  pos- 
sible a  new  seal  could  be  made  in  tliat  time,  and  besides  the  seal  was 
not  altered  till  the  3d  of  October  eodem  anno,  as  appears  by  the  pro- 
clamation thereof,  Claii.%.  1.  E.  3.  part  2.  m,.  1 1.  dors,  so  that  all  that 
■while  the  old  seal  with  the  old  inscription  stood  ;  the  method  of  which 
alteration  was  thus:  The  king  by  his  proclamation  bearing  iestt 
3  Octob.  anno  1.  directed  to  all  the  chief  sheriffs  of  England,s[gmfyr 
ing,  that  he  had  made  a  new  great  seal,  and  that  it  was  to  take  place 
from  the  fourth  day  of  that  month  of  October,  sends  them  the  impres- 
sion of  the  new  seal  in  wax,  commands  them  to  publish  it,  and  that 


HISTORIA  PLACITORUM  CORONA.  176 

after  the  fourth  day  of  October  they  should  give  faith  to  it,  and  receive 
no  writs  but  under  the  new  seal  after  .that  day. 

The  fourth  day  of  October  being  Simday  the  bishop  o{  Ely  chan- 
cellor produceth  the  ne\y  seal,  declares  the  king's  pleasure,  that  it 
should  be  from  thenceforth  used ;  the  Monday  after  the  old  seal  is 
broke,  prxcipiente  rege,  and  the  pieces  delivered  to  the  Spigurnel.(f) 

Again,  king  Henry  V.  died  30  ^Ingusti  anno  sui  c/ecimo, 
a  parliament  was  summoned  by  writ  bearing  teste  29  Sep-  [  177  3 
temb.  anno  prinio  H.  6,  to  be  held  die  lunx  ante  festnm 
Martini,  a  commission  issued  to  the  duke  of  Gloucester  bearing 
teste  6  Novemb.  1  H.  6.  ad  inchoanduni  parliamentiim,  4-c.  and  the 
bishop  of  Durham  chancellor  to  Henry  V,  delivered  up  the  seal  to 
the  king  28  Septemb.  The  new  seal  with  the  new  inscription  was 
in  that  parliament  ordered  to  be  made,  the  bishop  of  Dur/iam  was 
made  chancellor  by  commission underthe  great  seal  dated  16  Novemb. 
the  new  seal  was  not  made  till  some  time  after,  therefore  the  old  seal 
of  Henry  V.  was  used  in  the  summons  of  the  parliament  and  all  the 
transactions  till  the  new  seal  was  delivered:  indeed  when  Edward 
IV.  assumed  the  crown,  the  seal  of  Henry  VI.  was  not  used,  for  it 
could  not  be  had,  and  if  it  could,  yet  Henry  VI.  being  declared  an 
usurper,  there  was  no  reason  {ov  Edward  IV.  to  give  any  counte- 
nance to  that  usurpation  by  using  of  his  seal,  who  was  declared  an 
usurper  and  attainted  of  treason. [3] 

So  that  (except  the  last  case  of  an  usurper)  till  a  new  great  seal  be 
made,  the  old  seal,  being  delivered  to  the  keeper  and  used  and  em- 
ployed as  the  great  seal,  is  the  great  seal  of  Englancl  within  this 
statute,  notwithstanding  the  variance  in  the  \x\scn\){'\on,  port  rait  lire, 
and  other  substantials  from  the  state  of  the  present  governor. 

But  then,  what  shall  we  say  of  the  old  seal,  when  the  new  seal  is 
made  and  delivered  of  record  to  the  keeper,  and  the  old  seal  broken? 
To  this  I  say,  1.  It  was  once  the  great  seal  of  England,  and  there- 
fore the  counterfeiting  of  that  seal  and  applying  it  to  an  instrument 
of  that  date,  wherein  the  old  seal  stood,  or  to  an  instrument  without 
date,  is  high  treason;  nay,  if  in  the  time  of  Edward  IV.  a  man  should 
counterfeit  the  great  seal  of  Henry  VI.  and  apply  it  to  a  patent  or 
other  instrument  of  his  time,  it  had  been  high  treason,  tho  Henry  VI. 
were  an  usurper,  and  his  seal  in  the  time  of  Edward  IV.  of  no  value. 
9i?.4.(/) 

But  what  if  in  the  case  before  instanced  in,  after  the  4th 
of  October  1  £.  3.  a  man  had  forged  a  grant  by  king  Ed-  [  178] 
ward  Ill.(^)  bearing  teste  2  E.  3.  when  the  old  seal  was  out 

(c)  'The'Spigurnel  was  an  officer,  whose  place  was  to  seal  the  king's  writs.  Camhd. 
Remains,  p.  13fi. 

(/)  This  is  BagoVs  case,  9  iJ.  4.  1  b.  where  it  is  said  by  the  counsel,  "  That  a  m;in 
shall  be  arraigned  in  the  time  of  E.  4.  for  treason  done  against  H.  6,  in  compassing  his 
death,  .t'c." 

ig)  This  must  be  understood  under  the  old  seal. 

[3]  For  an  accourit  of  the  difficulties  the  parliament  got  into,  when  Lord  Keeper  Lit. 
tlelon  carried  oft' the  great  seal  to  the  king  at  York,  see  3  vol.  Lord  CampbeWs  Lives  of 
the  Chancellors,  p.  1.  et  seq^;  2  Hallam's  Cons.  His.  222. 


178  HISTORIA  PLACITORUM  CORONA. 

of  date,  or  in  the  time  of  Edward  W .  had  forged  a  grant  by  Edward 
IV.  and  counterfeited  the  seal  of  Henry  VI.  thereunto  ;  this  seems 
not  to  be  a  counterfeiting  of  "the  great  seal  o(  England,  if  the  differ- 
ence appear  very  legible  and  conspicuous,  for  at  the  time,  whereunto 
it  rehites,  there  was  no  such  great  seal  in  being;  but  if  the  difference 
between  the  seals  be  such  as  be  not  evident  to  the  view  of  every 
man's  eye,  it  may  be  more  doubtful ;  sed  vide  de  hoc  infra. 

Thi,s  statute  speaks  only  of  the  great  seal,  and  privy  seal,  and 
therefore  no  other  seals  were  within  this  statute. 

But  by  the  statute  of  1  Mar.  sess.  2  cap.  6.  "  If  any  do  falsely 
forge  or  counterfeit  the  queen's  sign  manual,  privy  signet  or  privy 
seal,  every  such  offense  shall  be  high  treason,  and  the  offenders 
herein,  their  counsellors,  procurers,  aiders  and  abettors  being  convict 
according  to  the  course  of  law  shall  be  adjudged  traitors  against  the 
queen,  her  heirs  and  successors."  But  now  what  shall  be  said  con- 
cerning these  other  seals  above-mentioned,  as  the  seals  for  the  writs 
of  the  courts  of  king's  bench,  common  pleas,  and  exchequer,  the  seal 
for  statute-merchant,  &c. 

By  the  old  law,  it  seems  that  counterfeiting  any  of  the  king's  seals, 
wherewith  writs  were  sealed,  was  petit  treason,  tho  it  came  under 
the  name  of  crimen  falsi.  •Glanvil, ih^i  wrote  in  Henry  II. 's  time, 
Lib.  XIV.  cff/7.  7v  "  Distinguendum  est,  utrum  fuit  carta  regia  an 
privata,  quia  si  carta  regia,  tunc  i^.  qui  super  hoc  convincatur  (scili- 
cet de  falsificatione)  condemnandus  est  tanquam  de  crimine  Isesas 
majestatis ;  si  vero  fuerit  carta  privata,  tunc  cum  convicto  mitius 
agendum  es]^  sicut  in  ceteris  minoribus  criminibus  falsi,  in  quorum 
judiciis  consistit  eorum  condemnatio  in  membrorum  solummodo 
amissione,  pro  regia  tamen  voluntate."  Bracton,  that  wrote  in  the 
time  of  Henry  III.  Lib.  III.  cap.  3.  de  crimine  Ixsse  majestatis,  §  2. 
"Est  &  aliud  genus  criminis  ra3S3e  majestatis,  quod  inter  gra- 
r  179  1  viora  numeratur,  quia  ultimum  inducitsupplicium  &  mortis 
occasionem,  scilicet  crimen  falsi  in  quadam  sui  specie  &  quod 
tangit  coronam  ipsius  regis,  ut  si  aliquis  accusatus  fuerit  vel  convict  us, 
quod  sigillum  domini  regis  falsaverit  consignando  inde  cartas  vel 
brevia,  vel  si  cartas  confecerit  &  brevia&signa  apposuerit  adulterina, 
quo  casu  si  quis  inde  inveniatur  culpabilis  vel  seisitus,  sivvarrantum 
non  habuerit,  pro  voluntate  regis  judicium  sustinebit,  &,  si  warran- 
tum  halnierit  &  warrantizaverit,  liberabitur  &  tenebitur  warrantus:" 
Ftfta,  that  wrote  in  the  time  of  E.  1.  Lib.  I.  cap.  22.  de  crimine 
falsi,  tells  us,  "■  Crimen  falsi  dicitur,  cum  quis  accusatus  fuerit,  quod 
sigillum  regis,  veil  appellatus,  quod  sigillum  domini  sui,  de  cujns 
familia  fuerit,  falsaverit  &  brevia  inde  consignaverit,  vel  cartam  ali- 
quam  vel  literani  ad  exha^redationem  domini  vel  alterius  damnum 
sic  sigillaverit,.in  quibus  casibus  si  quis  inde  convictus  fuerit,  detrac- 
tari  meruit  &  suspendi.  §  3.  Item  crimen  falsi  dicitur,  cum  quis 
illiritus,  cui  non  fucirit  ad  hoc  data  authoritas,_  de  sigillo  regis  rapto 
vel  invento  brevia  cartasve  consignaverit :"  Brilton,  that  wrote  in 
the  time  also  of  E.  1.  cap.  4.  "  Soit  inquise  de  touts  ceux,  qui  ascun' 
fausin  averont  fait  a  nostre  scale,  come  de  ceux  qui  pet  engin  ont 


I 


HISTORIA  PLACITORUM  CORONA.  179 

nostre  seale  pendu  a  ascun  charter  sauns  conge,  ou  que  nostra 
seale  ount  emble  ou  robbe,  ou  autrement  troue  eient  ensele  brefs 
sauns  autre  auctorite,  and  cap.  '8.  Graund  tresou  est  a  fauser  nostre 
seal  &c."  .      ' 

Upon  these  old  books  there  is  no  difference  made  touching  the 
king's  seals,  but  generally  the  crime  of  treason  was  supposed  in  coun- 
terleiting  any  of  them,  but  most  certainly  the  statute  of  25  E.  3. 
extends  only  to  the  great  and  privy  seal,  as  to  the  point  of  treason; 
but  then  whether  that,  which  was  a  treason  before,  remain  not  still  a 
felony  at  the  common  law  (for  all  treasons  include  felony.  3  H.  7. 10. 
Co.  P.  C.p.  15.)  is  considerable. 

M.  2.  H.  4.  B.  R.  Rot.  2.  as  I  take  it,  Visum  est  curiae,  quod  con- 
trafactio  sigilli  regis  pro  recognitionibus  non  est  nisi  felonia:(A)  but 
iho  they  held  it  not  treason,  they  do  not  positively  affirm  it 
felony  since  the  statute  of  of  25  E.  3.  but  only  iion  est  nisi  [  180  ] 
felonia,  viz.  that  at  most  it  can  be  only  felony. 

P.  6  E.  2.  B.  Rot.  2.  Essex.  Johannes  de  Bosco  per  cur'  est  culpa- 
bilis  pro  falsilate,  eo,  quod  cepit  cultellum  suum  &  calefaciebat  eura 
apud  ignem  &  aperuit  breve  regis  &  imposuit  aliud  fictum,  dicit  quod 
est  clericus,  &  traditur  ordinario  lVestm\{i)  Simile  P.  IS  E.  2  B.  R. 
Rot.  25  Rex\k) 

(li)  There  is  no  such  entry  to  be  found  either  on  the  second  or  seventh  roll  of  the  plea 
or  crown-roll  of  that  term,  but  the  words  cited  by  our  author  are  in  tlic  abstract  of  the 
rolls  of  the  king's  bench  of  Mich.  2  H.  4.,  Rut.  7.  but  upon  what  authority  is  uncertain, 
being  in  a  ditferent  and  more  modern  hand  than  that  of  Mr.  Agard,  who  in  the  reign  of 
Jamis  I.  abbreviated  the  king's  bench  rolls. 

(i)  The  record  of  this  case  is  thus,  '■'■John  de  Bosco  was  arraigned  pro  falsitate  sigilli  «& 
brevis  domini  regis,  eo  quod  ivit  cum  brevi  [de  cancellaria]  ad  ignem  &  calefaciebat  cul- 
tellum, &  cum  illo  cultello  ceram  dicti  brevis  findebat,  and  amoto  illo  brevi  imposuit  aiiud 
breve  [this  was  a  Supersedeas  to  the  sheriff  of  Essex]  &  illud  in  eadem  cera  inclusit  &  tra-  ■ 
didit  ^ervienti  sno  illud  breve  vicecomiti  Essex  deferendum,  qui  quidem  serviens  in  prse- 
seutia  pr!EdictiJ(;/(« n/i!S  dc  Bosco  liberavit  eidem  vicecomiti  falsum  breve  prtedictum  :  Dicit 
quod  clericus  est:"  upon  which  he  tvas  claimed  by  the  abbot  of  Westminster  his  ordi- 
nary ;  "  Sed  ut  sciatur  pro  quali  eidem  ordinario  liberari  debeat,"  a  jury  ex  officio  pass 
upon  him,  who  find  him  guilty  "  de  prsedicta  falsitate,  findendo  cum  cultello  suo  prtedicto 
ceram  prEdictam  &-  imponendo  falsum  breve  prsEdictum,  sicut  ci  superius  imponiiur: 
Ideo  inde  ad  judicium,  &c.  &  interim  committitur  maresch',  Sfc."  There  is  no  judg- 
ment entered  upon  the  roll;  so  that  from  this  record,  which  is  not  in  usual  form,  it  is 
doubtful  whether  he  had  his  clergy  or  not,  tho  from  a  jury  passing  upon  him  ex  officio  it 
is  most  probable  he  had;  but  yet  it  should  seem  from  the  case  of  Geoffrey  de  Huntijnton 
S(  Richard  de  Clijntbn,  which  was  but  six  years  afterwards,  as  if  this  offense  was  not  so 
much  as  felony;  they  were  charged  "  pro  contrafactione  sigilli  regis  &  cartre  sub  sigillo 
regis  sic  conlrafacto,"  which  was  found  in  their  custody;  afterwards  they  plead  the 
king's  pardon  •"  pro  omnibus  feloniis  &  transgressionibus,  &,  quia  inspecta  carta  proedicta, 
qu(E  dicitur  esse  contrafacta,  compertum  est  quod  carta  non  est  de  forma  in  cancellaria 
regis  usilata,  in?pceta  etiam  cera  ejusdem  cartsE  suspectJE  compertum  est,  quod  cera  ilia 
impressa  est  sigillo  regis  cancellar',  sed  prius  apposita  fuit  cuidam  alteri  literse  regi? 
|)ateiiti,  quod  ciliiis  did  potest  transgressio,  quam  contrafactio.  Et  dominus  rex  per- 
doiiavileis  sectam  pacis  sua>,  quae  ad  ipsum  pertinet,  de  onmimodis  feloniis  &  transgres- 

sionibus,  iStc. jam  per  tres  annos  in  prisona  regis  steterint  oceasione  pra?dicta  &,  non 

aHa  causa,  dictum  est quod  deliberet  cos,  &c.  &.  ipsi  cant  inde  quieti,  &e.  Et  carta 

illacanoollutur  in  cur."  Mirh.  11  E.2  B.  R.  Rot.  156.  Heref.  from  hence  it  appears  that 
the  judgment  alterwards  in  Leake's  case  4  Jac.  1.  was  agreeable  to  the  antient  resolu- 
tions. 

{k)  This  is  the  case  of  Philip  Burden,  but  is  by  no  means  similar  to  that  of  John  de 
Bosco,  ioi  this  was  a  direct  actual  counterfeiting  of  the  great  seal:  vide  infra  in  notis. 


181  HISTORIA  PLACITORUM  CORONA. 

It  appears  not,  whether  it  were  a  writ  under  the  great  seal 
r  181  ]  or  a  judicial  writ  of  some  court,  but  whether  it  were  the  one 
or  the  other,  it  seems  to  be  capital,  for  he  had  the  benefit 
of  clergy,  which  in  those  times  was  allowable  in  some  cases  of  trea- 
son ;  so  that  it  seems  a  counterfeiting  of  any  of  the  king's  seals  was 
felony  at  common  law,  but  whether  it  so  continues,  notwithstanding 
the  statute  of  25  E.  3.  hath  degraded  jt  from  treason, unless  it  be  the 
great  Or  privy  seal,  shall  be  farther  examined. 

II.  Having  thus  considered  the  seals,  it  remains  to  consider  what 
shall  be  said  a  counterfeiting  of  the  great  or  privy  seal. [4] 

A  conspiracy  or  compassing  to  counterfeit  the  great  or  privy  seal 
is  not  a  counterfeiting  nor  treason  within  this  act,  for  it  must  be  an 
actual  counterfeiting.  Co.  P.  C.p.  15. 

A  taking  the  great  seal  off  from  a  true  patent  and  clapping  it  on  a 
forged  patent  in  former  times  hath  been  held  high  treason ;  in  40 
^ss.  33.  it  is  plainly  held  to  be  high  treason,  (tho  my  lord  Coke{l) 
saith  otherwise)  for  the  woman,  that  did  it,  could  not  be  let  to  main- 
prise, which  if  it  had  been  only  a  great  misprision,  she  had  been  bail- 
able upon  that  indictment.(m) 

•  2  H.  25.  which  is  entered  H.  2.  H.  4.  B.  R.  Rot.  16.  Midd.  Cle- 
ment Petitson^s  case,  the  taking  off  the  true  seal  from  one  patent 
and  fixing  it  to  a  forged  patent  is  adjudged  high  treason;  yet  the 
judgment  is  only  quod  distrahatur  4'  suspendatur,  which  is  the 
judgment  in  petit  treason. 

This  case  and  the  reporting  of  it  is  disliked  by  my  lord  Coke  P.  C. 
p.  I5.;{n)  but  Stanf.  PL  C.  p.  3.  seems  to  agree  with  this  resolution. 

See  also  another  case  to  this  purpose  for  counterfeiting  the  privy  seal,  Rot. part.  Q.  E.'H. 
part.  2.  m.  18.  ''  John  de  Redynpes  was  arraigned  and  tried  coram  senescallo  &  mares- 
callo  hospitii  domini  regis  pro  contrafactionc  privati  sigilli  domini  re^is,  &  pro  quibus- 
dam  litteris  prisdlcto  sigillo  controfactis  [contrafacto]  consignalis  cum  co  inventis,"  and 
being  found  guilty  had  judgment,  "Quod  pro  pra;dicta  seducione  [seditione]  sit  dctrac- 
'  tus,  (fc  pro  manuopcre  cum  sigillo  prcedicto  postea  suspensus.".  Vide  Rylcifs  Flacita 
Parluinenturia,  p.  542 — 545. 

(/)  Co.  P.  C.p.  115. 

(m)  This  argument  of  our  author  is  very  far  from  being  conclusive,  for  by  the  statute 
o{  Westtn.  1.  cap.  15.  where  the  offense  is  open  and  manifest  (which  for  what  ajjpoars 
was  tlic  case  here)  the  ofiender  is  not  bailable,  altho  it  were  only  a  misprision.  2  Co. 
insM88,  189. 

(n)  And  well  it  might  be,  for  that  case  appears  by  the  record  to  have  been  thus: 
^^  Clement  I'eijlenyn  was  indicted,  quod  contraiccit  magimm  sigillum  domini  regis  failso 
&  malitiose  &,  proditoiic,  &  cum  dicto  sigillo  sic  contrafacto  quasdam  liieras,  quro  pre- 
sent' pra;dict'  sunt  consul',  sigill'.  he  jjleads  not  guilty,  the  jury  find,  quod  quoad  con- 
Iratactioncm  sigilli  prajdicti  idem  Clemens  in  nullo  est  culpabilis,  sed  dicuut,  quod  idem 
Clemens  falso  &,  dcccptoric  dfe.  in  deceptionem  populi  de  assensu  aliorum  de  covinq.  sua 

[4]  Neither  the  Congress  of  the  United  States,  nor  the  legislature  of  the  Common- 
wealth have  as  yet  declared  the  bare  counterfeiting  the  public  seal  of  the  federal  or  state 
government,  to  be  an  offence,  of  itself  But  if  such  seal  were  used  in  the  counterfeiting 
or  forging  any  certificate,  indent,  or  other  public  security,  to  which  a.  seal  was  by  law 
necessary  to  be  nflixcd,  it  might  bring  the  offence  under  the  laws  which  respect  coun- 
terfeits and  forgeries.  Act  of  (congress,  April  .30,  17!)().  ch.  19.  set.t.  14.  L(iws  of  Virg. 
1794.  ch.  13.'}.  sict.  3.  4  Ttickrr''s  lU.  Com.  83.  Several  of  the  States  have  passed  laws 
against  counterfeiting  the  seals  of  the  Stale,  courts,  &,c. 


HISTORIA  PLACITORUM  CORONA.  182 

But  the  later  authorities  are  against  it,  and  that  it  is  only  a  great 
misprision  and  offense,  but  not  high  treason,  no  nor  yet  felony,  as  it 
seems  by  the  book  hereafter  cited. 

37  //.  S.  B.  Treason  3.  A  chaplain  taking  a  goOd  seal  off  from  an. 
old  patent,  and  fixing  it  to  a  forged  dispensation  of  non-residence  no 
treason,  but  only  a  great  misprision  punishable  by  fine  and  imprison- 
ment. 

H.  4  Jac.  cited  by  lord  Coke,  P.  C.  p.  16.  Leakeys  case,  who  joined 
two  parchments  together  with  glew  so  close,  that  it  could  not  be  dis- 
cerned, and  put  a  label  through  both,  and  on  the  one  a  true  patent 
granted,  which  passed  the  seal,  and  then  afterwards  upon  the  other 
parchment  wrote  a  forged  patent,  then  he  cut  off  the  true  patent  and 
published  the  other  as  a  true  patent;  this  was  ruled  by  the  advice  of 
all  the  judges,  1.  That  this  was  no  counterfeiting  of  the  great  seal, 
nor  treason  within  this  act.  2.  But  if  it  had  been  a  counterfeiting  of 
the  seal,  he  might  have  been  generally  indicted  of  treason  for  coun- 
terfeiting the  great  seal,  but  it  was  ruled  to  be  a  great  misprision  ot 
offense,  but  not  high  treason ;  and  with  this  opinion  agrees  my  lord 
Cuke,  and  it  is  the  safer  and  later  opinion  and  fit  to  be  followed. 

If  the  patentee  of  the  king,  of  lands  under  the  great  seal,  faze  the 
name  of  one  of  the  manors  and  make  it  another  name,  this 
is  not  counterfeiting  of  the  seal  nor  treason  within  this  sta-  [  183  ] 
tute,  but  a  great  oflense  or  misprision,  for  which  the  abbot  of 
Bnier  was  sentenced  before  the  king  and  his  council,  and  the  abbot 
delivered  up  the  charter  to  be  cancelled.  Claus.  42  E.  3.  m.  8.  dors. 
Co.  P.  C.  p.  16. 

If  the  chancellor  or  keeper  affix  the  great  seal  to  a  charter  without 
warraut,  tho  this  be  a  misdemeanor  in  him,  it  is  not  treason  within 
this  statute,  tho  Britton  and  Fleta  uhi  supra  make  it  treason  at 
common  law  ;  and  altho  it  should  be  supposed  treason  at  common 
law,  but  not  comprised  within  the  statute,  yet  it  is  not  now  felony; 
therefore  the  rule  taken  3  H.  7.  10.  that  those  treasons  at  common 
law,  which  are  not  within  the  declaration  of  25  E.  3,  yet  remain 
'felony,  is  not  true,  as  might  be  made  appear  by  many  instances. 

scribi  fecit,  &  finxit  literas  illas  pendi  fecit  sigillum  magnum  domini  regis,  quod  antea 
pendebat  super  aliam  magnain  patentam  domini  regis.  Si.  sigillum  dominii  regis  praedic- 
tura  subtiliter  &l  private  consui  fecit  super  literas  falsas  prsedictas,  &  illas  falsas  literas 
una  cum  sigiUo  domini  regis  prcedicto  in  diversis  partibus  regni  AngliiB  tanquam  veras 
literas  pateiitcs,  prout  eapdem  litcrce  faciunt  mentionem,  usus  est  &  exercebat  in  decep- 
tioiiem  domini  regis  &  populi  sui ;  propter  quod  pro  eo,  quod  curia  non  avisatur,  quale 
judicium  praidictus  Clemens  in  hac  parte  subire  debeat,  remittitur  prisonao  marescli' : 
Afterwards  in  the  Easter  term  next  following,  viso  indictamento  necnon  veredicto  prse- 
dictis  videtur  curiiE  liic,  quod  fal-sse  literjE  prsedictfe  sic  in  deceptionem  domini  regis  & 
populi  sui  facta;  &  sigillatag,  una  cum  usu  &-  exercitio  earundem,  alta  proditio  sunt,  con- 
sideratum  est,  quod  praedictus  Clemens  Feyteni/n  distrahatur  &.  suspendatur."  This 
mvst  be  owned  to  be  a  very  extraordinary  case,  for  as  lord  Coke  justly  observes,  whatever 
offcQso  this  were,  yet  this  judgment  ought  not  to  have  been  given  upon  this  verdict,  for 
the  jury  had  ex))ressly  acquitted  him  oT  the  offense  charged  in  the  iudictment ;  not  to 
mention,  that  it  is  directly  contrary  to  the  case  above-mentioned  of  Geoffrey  de  Hunlyn. 
<on;  there  is  likewise  another  irregularity  in  this  case,  that  tho  the  otFcnse  was  commit- 
ted after  the  25  E.  3.  and  is  laid  to  be  done  proditorie,  yet  it  is  not  laid  to  be  contra  for- 
mam  tiatud,  as  since  that  statute  all  treasons  ought  to  be. 
,       VOL.  I. — 21 


18^  HISTORIA  PLACITORUM  CORONA. 

And  upon  the  same  account  it  seems,  that  ahho,  by  Fletn  and 
Britton,  if  a  man  find  casually  the  great  seal,  and  seal  a.  forged 
charter,  this  was  treason  at  common  law  ;  yet  it  is  neither  felony"  nor 
treason  at  this  day,  for  here  is  no  counterfeiting  of  the  great  seal,  it 
.is  therefore  only  a  great  misdemeanor,  Co.  P.  C.p.  16. 

And  altho  it  seems,  by  tlie  old  books  above  cited,  that  counterfeit- 
ing of  the  judicial  seal  of  the  king  used  for  writs  was  then  treason, 
yet  very  lately  in  the  king's  bench  it  was  ruled  to  be  no  felony  at 
this  day,  but  only  a  great  misdemeanor  punishable  by  fine  and- 
imprisonment,  or  by  standing  in  the  pillory,  or  both,  so  that  the  book 
of  3  H.  7.  is  not  in  all  points  agreeable  to  law,  for  many  things  were 
treason  before  25  E.  3.  which  are  thereby  declared  not  to  be  treason, 
and  yet  remain'  not  felony  at  this  day ;'  and  the  like  for  counterfeiting 
the  seal  of  a  statute  merchant. 

If  a  man  grave  the  sculpture  of  the  great  seal  without  warrant 
from  the  king,  but  never  use  it  or  apply  it  to  seal  any  thing,  this 
seems  to  be  no  counterfeiting  of  the  great  seal,  tho  it  be  with  design 
and  preparatory  to  such  an  attempt;  for  tho  in  truth  the  instrument 
itself  be  the  seal,  as  appears  by  the  usual  expression  sigillo  meo 
sigillaf,  and  by  the  frequent  proclamations  de  sigillo  amisso,  when 
either  the  king  or  a  subject  lost  his  seal  casually,  yet  it  seems  not  a 
seal  within  this  statute  till  an  impression  made  in  wax  in 
r  184  3  testimony  of  sonie  writing,  no  more  than  the  forging  of  a 
stamp  for  money  is  a  counterfeiting  of  money,  unless  it  be 
used,  tho  in  both  cases  it  is  a  great  misdemeanor  and  a  great  evi- 
dence to  prove  the  offense  committed,  if  any  other  circumstances 
concur  to  prove  it  done. 

M.  16  Jac.  B.  R.  One  counterfeited  the  draught  of  a  patent  to 
himself  and  others  to  compound  with  alehouse-keepers  and  usurers 
touching  their  offenses,  and  coiuiterfeited  the  privy  signet  to  warrant 
the  passing  of  the  other  commission  so  by  him  drawn,  and  collected 
divers  sums  of  money  thereby,  and  for  counterfeiting  the  privy  signet 
he  was  indicted  of  high  treason  upon  the  statute  of  1  Mar.  It  was 
resolved,  1.  That  the  counterfeiting  of  the  great  seal,  privy  seal,  sign 
manual,  or  privy  signet  is  at  this  day  high  treason.  2.  That  the 
adding  of  the  crown  in  the  counterfeit  signet,  which  was  not  in  the 
true,  and  the  omission  of  some  words  in  the  inscription,  .which  were 
in  the  true  signet,  and  the  inserting  other  words,  which  werp  not  in 
the  true,  (which  was  done  purposely,  that  there  might  be  a  difference 
between  the  true  signet  and  the  counterfeit)  alters  not  the  case,  bat 
it  is  high  treason,  for  the  fixing  of  the  counterfeit  signet,  and  thereby 
obtaining  the  great'seal  to  his  feigned  patent,  and  thereby  publishing 
it  to  be  true,  and  collecting  sums  of  money  by  it  make  it  treason} 
the  offender  had  judgment  to  be  drawn,  hanged  and  quartered.(o}'' 

So  that  it  should  seem,  that  tho  there  might  be  so  great  a  disparity 
between  the  true  and  counterfeit  signet,  that  the  bare  affixiifg  of  sucl^ 
a  seal  might  not  be  a  counterfeiting  within  the  statute  ;  yet  if  it  were 


(o)  This  case  is  reported  in  2  Rol,  Rep.  50.  by  the  name  oi  Robinson's  case. 


J 


HISTORIA  PLACITORUM  CORONiE.  184 

so  like,  that  it  deceived  the  officers  of  the  great  seal,  and  was  used 
to  tlmt  purpose,  and  attained  its  effect,  viz.  the  affixing-  of  the  great 
seal  to  (he  forged  commission,  it  was  a  sufficient  counterfeiting  to 
bring  him  within  this  law  of  1  Mar. 

The  like  inutatis  mutandis  may  be  applied  to  the  great  or  privy 
seal. 

If  a  man  counterfeit  the  stamp   of  the  great  seal,  and 
deliver  it  to  B.  to  use,  B.  being  ignorant  that  it  is  a  counter-  [  1S5  ] 
feit  stamp,  but  thinking  it  true,  seals  a  writ  or  commission, 
this  seems  not  to  be  treason  in  B.  because  he  did  it  not  proditori^y 
but  it  seems  to  be  treason  in  the  deliverer,  if  he  delivered  it  to  that 
purpose,  for  he  did  it  proditorih,  but  the  other  not. 

III.  I  come  in  the  last  place  to  consider  the  judgment  in  the  case 
of  counterfeiting  of  the  seal,  whether  it  be  only  to  be  drawn  and 
hanged,  as  in  the  case  of  counterfeiting  money,  or  to  be  drawn, 
hanged,  beheaded,  ^'C.  as  in  the  case  of  compassing  the  king's  death, 
levying  of  war,  or  adhering  to  the  king's  enemies. 

It  seems  that  at  the  common  law  this  offense  was  felony  or  treason 
at  the  king's  election  ;  if  the  indictment  ran  only  felon  ice  it  was  only 
felony,  '\i proditori^  it  was  treason. (;>) 

But  altho  it  were  proditoril  and  so  applied  to  treason,  it  was  not 
a  treason  of  so  deep  a  die,  as  that  of  compassing  the  king's  death, 
adhering  to  the  king's  enemies, ^r  levying  war,  which  strikes  at  the 
head,  and  therefore  in  comparison  thereof  it  was  a  kind  of  petit 
treason. 

Clans.  6  Johan.  M.  12.  doi^s.  "  Scias  quod  dedimus  Jldsed^o,  Essex 
clerico  nostro  pro  servito  sno  omnia  terras,  tenementa  &  jura,  quae 
fuerunt  JVilliehni  de  Siriibby,  cujus  terrae  &  tenementa  sunt  eschaeta 
nostra  per  feloniam,  quam  fecit  de  falsificatione  figilli  nostri."  Et 
nota  the  king  had  the  escheat,  yet  the  offense  was  styled  felony. 

At  the   parliament  18  E.  1.  Co.  P.  C.  p.  16.  Clergy  was  allowed 
to  a  man  convict  pro  falsificatione  sigilti  regis,  deliberatur  ordi- 
nario,{q)  but  in  tali  casti  non  admittenda  est  purgatio ; 
and  yet  in  these  greater  cases  of  treason  of  levying  war  or  [  186  ] 
compassing  the  king's  death  clergy  was  not  allowed  at  com- 
mon law.      T.  21  E.  3.  B.  R.  Rot.  23.  Rex.{r) 

(p)  Co.  P.  C.  p.  15. 

(9)  This  is  confirmed  by  Philip  Burton's  case,  (P.  18  E.2.  B.  R.  Rot.  25.  Rex  South') 
who  together  with  Richard  de  Bourne  was  indicted  Quod  nequiter  &  seditiose  contra- 
fecit  figillum  de  metallo  ad  modum  inagrii  figilli  regis,  de  quo  quidem  figillo  contratacto 
diversa  brcvia  quarnplurima  eonsignavit;  he  pleads  quod  clericus  est,  the  jury  find  him 
•  guilty  de  feloniu  Sf  seditione  prccdicfis  ei  imposilis,  and  lie  was  thereupon  delivered  to 
his  ordinary,  tanquam  clericus  convictus,  from  hence  it  appears  that  at  common  law 
clergy  was  allowed  in  cases  of  treason,  where  it  was  not  inmicdiately  against  the  king's 
person. 

(r)  That  case  was  thus,  Peter  de  Thorpe  son  of  John  de  Thorpe  was  indicted,  and 
afterwards  outlawed  anno  18  E.  3.  pro  diversis  feloniis  6f  seditionibus,  viz.  going  to 
little  Yarmouth  and  Gorleston  cum  tribus  vexillis  exteusis  in  modum  guerrcc,  breaking 
open  houses  there,  feloniously  taking  away  goods  there,  &fc.  and  also  five  ships,  "  Quae 
pra;parat8B  crant  de  victualibus  &.  aliis  necessariis  eundi  cum  domino  rcge  in  guerra  fua, 
&.C.  Altcrwards  coram  regc  ([Uiesitum  est  a  prajfato  Pelro,  si  quid  pro  so  habeat  vel 
diccre  scial,  quare  ad  executioncm  judicii  de  eo  super  utlagaria  praidicta  procedi  non 
dcbeat,  &,c.     Qui  dicit,  quod  clericus  est  &.  membrura  sacra)  ecclesia?,  &,c.     Et  quiBsitum 


186  HISTORIA  PLACITORUM  CORONiE. 

M.  1.  E.  3.  Charter  de  Pardon  I3.(f)  A  man  arraigned  for 
counterfeiting  the  king's  seal  pleaded  a  charter  of  pardon  of  all  felo- 
nies, arjd  it  was  allowed  ;  yet  there  it  is  agreed,  that  the  judgment 
for  such  an  ofjense  is,  that  he  shall  be  drawn  and  hanged,  but  such  a 
pardon  will  not  serve  in  such  a  case  since  the  statute  of  25  E.  3. 

Trin.  10  E.  2.  Rot.  132.  B.  R.  Bucks.  "  Boberius  Legat  k 
Johannes  Salecok  per  ballivos  coram  rege  ducti  ad  respondendum 
domino  regi  de  hoc,  quod  ipsi  cum  aliis  ignotis  in  pleno  mercato 
villse  de  Olneye,  cum  quadam  falsa  commissione  &  ficta  cum  quodam 
sigillo  regis  controfacto  signata,  quam  ballivi  in  curia  regis  hie  por- 
rexerunt,  asserentes,  illam  super  eos  inveniri  die,  quo  attachiati 
fuerunt  &  dicentes,  quod  virtute  illius  commissionis  prisas  fecerunt 
ad  opus  domini  regis,  usque  ad  summam  sexaginta  besliarum,  de 
quibus  quatuor  bestir  inventae  fuerunt  in  eorum  possessione  &  cum 
eis  hie  ductse  ;  they  both  plead  not  guilty ;  the  jury  find  John  Sale- 
cok guilty  de  falsitatibus  &  feloniis  praedictis,  judgment  given  against 
him  pro  falsitatesigilli  regis  &  commissione  praedictis  quod  detrahatur 
&  pro  furtiva  abduclione  prasdictarum  besliarum  suspendatur." 

Nota,  an  arraignment  of  treason  without  indictment  upon 
r  187  ]  the  7nainouer[t)  found  upon  them:  vide  P.  21  E.  3.  B.  R. 
Rot.  46.  Midd'' Rex. 

According  to  the  old  books  above-mentioned,  Fleta,  ^-c.  ubi 
st(pra,dis(rohi  debet  &;  siispendi ;  and  so  it  was  practised  in  the 
case  of  2  H.  4.  above-mentioned,  where  the  judgment  is  only  (//■?- 
Irahi  Sf  suspendi. 

And  it  may  be  reasonably  argued,  that  as  in  the  case  of  counter- 
feiting the  king's  coin,  which  was  a  treason  at  common  law,  tho  it 
be  so  declared  by  the  statute  of  25  E.  3.  yet  the  judgment,  that  wa^ 
at  common  law,  which  was  only  to  be  drawn  and  hanged,  is  not 
altered  by  that  statute.  M.  10  Car.  B.  R.  iMorgan's  case  ;(«/)  so  in 
case  of  counterfeiting  the  seal ;  but  at  this  day  the  law  is  generally 
held,  that  for  counterfeiting  of  the  great  or  privy  seal,  or  of  the  privy 
signet  or  sign  manual,  the  judgment  is  to  be  hanged,  beheaded  and 
quartered,  as  in  other  high  treasons,  and  so  was  the  judgment  in  the 
case  of  16  Jac.  above-mentioned;  and  it  is  safest  to  follow  the  modern 
practice  in  judgments  of  high  treason,  tho  I  think  it  no  error,  if  the 
judgment  be  only  guod  distrahatur  (5*  snspendatur  according  to 
the  antient  precedents,  because  the  judgment  is  still  capital,  and  tho 
it  be  less,  than  the  highest  judgment  in  treason,  yet  it  is  still  included 
in  it.[5] 

est  scepius  ab  eo,  si  qnid  aliud  velit  dicere  pro  responsione  in  rctardationem  judicii,  &c. 
Qui  dicit,  ut  prius,  &i,  niliil  aliud  rcspondet,  &-c.  Et  inspcctis  indictamentis  praedictis, 
&i,  etiam  recordo  &-  j)rocessu  utiagar'  pricdictre;  manifestiE  compcrtuin  est  in  cisdem,quod 
utlagar'  prtedicta  nuper  arliculo  sedilionis  proniulgatur,  in  quo  casu  prtedictus  Petrus 
privilegio  cicricali  gaudere  non  potest  secundum  legem  &  consactudinem  regni,  &c. 
Ideo  idem  I'elrus  distrahatur  &  suspendatur,  &,c." 

(s)  1  E.  3.  23.  b.  - 

•   (/)  See  for  this  kind  of  arraignment,  7  H.  4.  43.  b.  S.  P.  C.  148.  c.  2  Co.  Instit.  188. 

(u)  Cro.  Car.  383. 

[5]  The  Statutes  of  treason  relating  to  the  great  seal,  privy  seal,  privy  signet,  sign 
manuul,  &c.  have  all  been  repealed  by  the  H  Geo.  4.  ^T  1  Will.  4.  c.  66.  s.  2.  by  which 


HISTORIA  PLACITORUM  CORON.^.  187 

it  is  enacted,  "  That  if  any  person  shall  forge,  or  counterfeit,  or  shall  utter,  knowing  the 
same  to  be  forged,  or  counterfeited,  the  great  seal  of  the  united  kingdom,  his  majesty's 
privy  seal,  any  privy  signet  of  his  majesty,  his  majesty's  royal  sigft  manuel,  any  of  his 
majesty's  seals  appointed  by  the  twenty-fourth  article  of  the  union,  to  be  kept,  used,  and 
continued  in  Scotland,  tiie  great  seal  of  Ireland,  every  such  offender  shall  be  guilty  of 
high  treason,  and  shall  suffer  death  accordingly;  provided  always,  that  nothing  contained 
in  an  act  passed  in  the  seventh  year  of  the  reign  of  King  \¥illia?n  the  Third,  entitled, 
■' An  act  for  regulating  of  trials  incases  of  treason  and  misprision  of  treason,' or  in 
an  act  passed  in  the  seventh  year  of  the  reign  of  Queen  ylnJie,  entitled,  '  An  act  for 
improving  the  union  of  the  two  kingdoms,'  shall  extend  to  any  indictment,  or  to  any 
proceedings  thereupon,  for  any  of  the  treasons  herein  before  mentioned." 

The  7  Will.  4.  <^  1  Vict.  c.  84.  s.  1.  after  reciting  the  enactments  of  the  11  Geo.  4.  Sf 
1  Will.  4.  c.  66.  enacts,  "  That  if  any  person  shall  after  the  commencement  of  this  act, 
be  convicted  of  any  of  the  offences  herein  before  mentioned,  such  person  shall  not  suffer 
death,  or  have  sentence  of  death  awarded  against  him  for  the  same,  but  shall  be  liable 
at  the  discretion  of  the  court,  to  be  transported  beyond  the  seas  for  life,  or  for  any  term 
not  less  than  seven  years,  or  to  be  imprisoned  for  any  term  not  exceeding  four  years 
nor  less  tlian  two  years." 


CHAPTER  XVII.[l]  [  188  ] 

CONCERNING  HIGH  TREASON  IN  COUNTERFEITING  THE  KING's  COIN, 
AND  IN  THE  FIR.ST  PLACE  TOUCHING  THE  HISTORY  OF  THE  C0IN[2] 
AND  COINAGE  OF  ENGLAND. 

The  legitimation  of  money  and  the  giving  it  its  denominated  value 
is  justly  reckoned  ijiter  jura  majestuf  is,  and  in  England  it  is  one 
special  part  of  \he  king's  prerogative. 

[1]  The  law  as  it  is  written  in  the  ensuing  chapters,  which  treat  of  treasons  relating 
to  the  coin,  has  undergone  very  great  alterations  by  a  late  Act  of  Parliament.  Milder 
and  more  suitable  punishments  have  been  attached  to  these  offences,  and  the  guilt  of 
treason  has  in  every  instance,  been  taken  away  from  them.  They  now  range  under  the 
heads  of  felony  and  misdemeanor;  which  seems  to  be  the  proper  classification;  and  the 
one  adopted  by  the  old  law  writers,  in  whose  treatises  they  always  rank  as  a  species  of 
\\i&  crimen  falsi.  See  4  Bl.  Com.  88.  But  there  still  remains  a  great  deal  of  curious  and 
useful  information  untouched  by  the  provisions  of  this  Act.  The  statute  alluded  to  is 
the  2  Will.  4.  c.  34.  which  repeals  wholly  or  in  part  the  undermentioned  statutes  relating 
to  the  coin. 

{Statutes  wholly  repealed.)  Stat,  de  Moneta  vulgo.  21  Edw.  1.  Stats.  4.  5.  Sf  6.  27  Edw. 
1.  Stat.  1.  9  Edw.  3.  Stat.  2.  17  Edw.  3.  25  Edw.  3.  Stat.  5.  c.  12.  Sf  13.  3  Hen.  5 
Stat.  2.  c.  6.  Sf  7.  19  Hen.  7.  c.  5.  5  t^  6  Edw.  6.  c.  19.  1  Mar.  Stat.  2.  c.  6.  1  P.  ^  M. 
c.  11.  5  Eliz.  c.  11.  14  Eliz.  c.  3.  18  Eliz.  c.  1.  8.  Sf  9.  Will.  3.  c.  26.  9.  Sf  10.  Will.  3. 
c.  21.  1  Ann.  Stat.  1.  c.  9.  15  Geo.  2.  c.  28.  11  Geo.  3.  c.  40.  13  Geo.  3.  c.  71.  7  Geo.  4. 
c.  9. 

(Statvteg  partially  repealed.)  18  Edw.  3.  Stat.  1.  25  Edw.  3.  Stat.  5.  e.  2.  (the  famous 
statute  of  treasons:  repealed  as  far  as  regards  the  coin)  27  Edw.  3.  Stat.  2.  c.  14.  6  Sf 

7  Will.  3.  c.  17.  7  Ann.  c.  24.  7  Ann.  c.  25.  37  Geo.  3.  c.  126.  56  Geo.  3.  c.  68.  3  Geo.  4. 
c.  114. 

It  repeals  the  following  Scotch  Acts  relating  to  the  coin.  6  Pari.  Jac.  2.  5  Pari.  Jac.  3. 

8  Pari.  Jac.  3.  7  Pari.  Jac.  5.  7  Pari.  Jac.  5.  9  Pari.  Mary.  1  Pari.  Jac.  6.  1  Pari. 
Will. 

And  also  these  Irish  Acts.  3  Edw.  4.  c.  3.  28  Eliz.  c.  6.  8  Ann.  6.  23  Sf  24  Geo.  3. 
c.  50.  26  Geo.  3.  c.  39. 

The  principal  provisions  of  the  2  Will.  4.  will  be  found  in  their  appropriate  places 
throughout  these  pages. 

[2]  Coin,  in  French,  signifieth  a  corner,  and  from  thence  hath  its  name,  because  in 
ancient  times  money  was  square  as  it  is  in  some  countries  to  this  day.  1  Ins.  207. 


188  HISTORIA  PLACITORUM  CORONiE. 

Before  I  enter  into  the  particulars  concerning  money  I  will  give  a 
history  or  narrative  of  the  various  states  and  conditions  and  changes 
of  money  in  the  several  ages  of  this  kingdom,  and  then  shall  descend 
to  some  more  particular  observations,  which  will  be  useful  in  this 
business. [3] 

Money  is  the  common  measure  of  all  commerce  almost  through 
the  world;  it  consists  principally  of  three  parts;  1.  The  material^ 
whereof  it  is  made.  2.  The  denomination  or  extrinsic  value.  3.  The 
impression  or  stamp. 

I.  The  material  in  England  is  either  pure  silver,  or  pure  gold, 
whereof  possibly  some  money  was  antiently  made  here  in  England, 
or  else  silver  or  gold  mixed  with  an  allay,  which  was  usually  and  is 
hitherto  a  small  proportion  of  copper. 

The  standard  of  the  money  of  England,  that  hath  for  many  ages 
obtained,  is  that,  which  is  commonly  called  Sterling{a)  gold  or  Sler- 
ling  silver,  for  tho  the  denomination  o{  Sterling  was  at  first  applied 
to  the  coin  of  silver  and  to  that  coin,  which  was  the  penny 
\_  189  ]  commonly  called  Slerlingus,  yet  use  huth  made  it  af)plica- 
ble  not  only  to  all  kind  of  English  coin  of  silver,  but  also  to 
coin  of  gold,  and  this  is  called  the  standard  of  coin. 

But  before  this  can.be  well  understood,  we  must  make  some 
digression  touching  the  measures  applicable  to  these  materials. 

In  silver  the  measure  or  weights  applicable  thereunto  are  princi- 
pally these: 

1.  The  pound,  which  being  not  averdupois,  but  troy  weight,  con- 
sists of  twelve  ounces. 

2.  The  ounce  consisting  of  twenty  penny  weight. 

3.  The  penny,  or  Sterling,  consisting  of  thirty-two  grains  of  wheat 
taken  out  of  the  middle  of  the  ear. 

This  is  the  old  compositiomensurariiniseii\ed  in  the  time  o{  E.  \.{b) 
viz.,  quud  denarius  Jlnglix,  qui  denominatur  Sterlingus  rotundus, 
sine  tonsura  ponderabit  triginta  duo  grana  frumenti  medio  spicse,  & 
viginti  denarii  faciunt  unciam,  &  duodecim  uncise  faciunt  libram,  & 
octo  librEG  faciunt  gallonem,  &  octo  gallones  busselum.(c) 

Arid  it  is  to  be  remembered,  that  at  that  time  a  penny  did  really 
weigh  the  twentieth  part  of  an  ounce  of  silver,  and  twenty  pennies 
did  really  weigh  an  ounce  of  silver,  and  two  hundred  and  forty  pence 

(n)  Some  imafrinc  tliis  word  to  come  from  the  town  of  Sterling  in  Scotland,  where 
they  protend  tlic  purest  money  was  formerly  made;  otlicrs  that  it  is  derived  from  the 
Sdxou  word  Stcore,  which  signifies  rule  or  standard;  others  that  it  was  taken  from  some 
Flemish  workmen,  wlio  in  the  reign  of  I\in<r  Juhn  were  invited  over  to  reduce  the  money 
to  its  proper  finentjss;  the  [)e()ple  of  tiiat  country  hv'm^  generally  called  Easterlin<rs. 

(h)  An  old  liiger  hf)ok  of  the  ahbey  of  St.  Edmiiiidslmry,  says  the  affair  was  thus 
settled  in,.'}  /:.'.  J.  I)y  George  liucklei/  then  mayor  of  London  and  master  of  the  n)int;  and 
in  the  '28  E.  1.  an  indented  trial- piece  of  the  o-oodness  of  old  Sterling  was  lodged  in  the 
cxcliefjucr,  and  every  pound  weight  troy  of  such  silver  was  to  be  shorn  at  twenty  shil- 
lings and  three  pence.     See  TinduVs  note  on  Raimi's  history,  suhjine  Ed.  1. 

('■)  Vide  statute  31  E.  1.2  Co.  Instil.  577. 


[3]  1  Bl.  Com.  27G.  1  East,  P.  C.  147.  Smith's  Wealth  of  Nations,  Book  I.  ch.  11. 


HISTORIA  PLACITORUM  CORONA.  189 

(lid  really  amount  to  a  pound  weight  troy,  and  to  twenty  shillings, 
which  made  a  pound  of  silver  coin. 

And  ahho  at  this  time  the  coin  is  raised,  and  therefore  varies  from 
what  it  was  at  that  time,  yet  to  this  day  twenty  shillings  in  silver  is 
called  a  pound,  and  the  measure  of  an  ounce  is  by  twenty  penny 
weights  according  to  the  old  proportion  ;  but  indeed  the  grain  is 
changed,(*)  for  whereas  thirty  [twoj  grains  of  corn  then  made  an 
ounce,  [a  penny  weight,]  yet  because  the  weight  of  corn  is  not  al- 
ways uniform,  and  tlie  number  of  thirty  [two]  was  not  so 
ready  and  easy  for  computation  :  the  penny  weight  is  now  [  190  ] 
divided  into  twenty-four  equal  parts;  which  are  commonly 
in  the  business  of  the  mint  called  grains. 

But  touching  the  measure  of  gold,  there  is  some  difference  in  re- 
lation to  coin  from  that  of  silver,  for  we  are  told  by  the  libei^  ruber 
scaccariiy  in  that  large  tract  concerning  money,  that  the  pound  of 
gold  consists  of  twenty-four  carets,  every  caret  weighing  half  an 
ounce  of  silver,  and  every  caret  consisting  of  four  grains;  and  con- 
sequently every  grain  of  gold  would  weigh  sixty  of  those  grains, 
which  we  call  grains  of  silver,  viz.  the  artificial  grains,  whereof 
twenty-four  made  the  penny  weight.(^) 

Now  the  Sterling  standard  was  antiently,  as  it  seems,  somewhat 
diti'erent  from  the  standard  as  it  is  at  this  clay,  and  for  some  hundred 
of  years  before;  for  from  the  46th  year  of  Edward  III.  and  for 
some  time  before  until  this  day,  the  standard  of  Sterling  silver  hath 
been  and  is  this,  viz.,  every  pound  of  Sterling  silver  hath  eleven 
ounces  two-penny  weight  of  fine  silver,  and  eighteen  penny  weight 
of  copper,  which  makes  the  allay  of  Sterling;  tut  because  there 
cannot  be  so  exact  an  observation  of  the  proportion,  a  half-penny 
weight  of  copper  over  or  under  is  allowed  for  the  remedy,  which  is 
the  cause  that  Sir  Johyi  Davis  in  the  case  of  mixt  monies„/o/.  24  b. 
saith,  that  eighteen  shillings  and  five  pence  halfpenny  argenti  puris- 
simi  continentur  in  quutibet  libra,  <§*  quselibet  libra  de  Sterling 
money  avoit  18  d.  ob.  de  allay  de  coper,  4*  nient  pluis. 

But  before  that  tmie  it  appears  by  the  red  book  in  the  exchequer, 
(which  was  written  before  46  E.  3.  and  after  23  E.  3.)  the  standard 
of  Sterling  silver  consisted  of  eleven  ounces  four  penny  weight  of 
fine  silver,  and.  sixteen  penny  weight  of  copper,  so  that  then  the 
standard  was  purer;  and  possibly  by  what  follows  it  may  appear, 
that  in  the  time  of  Henry  II.  the  standard  was  purer  than  that,  for 
then  there  was  allowed  only  twelve-pence  upon  the  pound  of  silver 
dcalbare  Jir7natn,(e)  which  possibly  might  be  to  reduce  it  to  fine 
silver,  but  this  is  obscure;  de  hoc  postea. 

The  standard  of  Sterling  gold  in  the  latter  end  of  E.  3.(/)  [  191  ] 
was,  that  a  p^und  of  Sterling  gold  consisted  of  twenty- 

(*)  There  bein^,  as  I  appreliend,  two  or  three  mistakes  in  this  paragraph,  I  was  not 
■willing  to  vary  froni  the  original  MS.,  but  have  inserted  in  brackets  what  I  think  was 
intended. 

[d)  If  1  caret=4  grains=^  ounce=10  penny  weight,  then  J  caret  =  l  grain=2.J  penny 
weight==60  grains  of  silver. 

ie)  Mat.  Pari^,  747.  (/)  See  TindaVs  note  on  Rapiu's  iiistory,  sub  fine  Ed.  3. 


191  HISTORIA  PLACITORUM  CORONA. 

three  carets,  three  grains  and  a  half  of  pure  gold,  and  a  half  grain 
of  allay  of  copper,  and  thus  I  think  it  continues  to  this  day;  and  by 
this  we  may  understand  the  statute  of  17  E.  4.  cap.  1.  and  4  H.  7. 
cap.  2.  by  the  former  it  is  provided,  that  no  goldsmith  sell  any  gold 
under  the  fineness  of  eighteen  carets,  nor  silver  under  the  allay  of 
Stei'ling;  by  the  latter,  that  all  silver,  that  shall  be  fined  or  parted, 
be  made  so  fine,  that  it  may  bear  twelve  penny  weight  of  allay  in  a 
pound  weight,  and  yet  be  so  good  or  better  than  Slerling.[4'] 

And  this  is  the  dignity  of  the  coin  of  England,  that  it  hath  been 
generally  of  the  allay  of  Sterling,  (except  some  small  interruptions, 
whereof  hereafter)  and  according  to  this  it  was  enacted  25  E.  3.  cap. 
13.  that  the  money  of  gold  or  silver,  which  now  runneth,  shall  not. 
be  impaired  in  weight  or  allay,  but  as  soon  as  a  good  way  may  be 
found,  the  same  be  put  into  the  antient  state,  as  in  the  Slerling  made 
upon  the  petition  of  the  commons.  Rot.  Par.  25  E.  3.  n.  32. 

II,  As  to  the  second  essential  of  coin  it  is  the  denominated  or 
extrinsic  value,  which  is  and  of  right  ought  to  be  given  by  tiie  king, 
as  his  unquestionable  prerogative, (^)  and  that  is  seen  in  these  par- 
ticulars. 

1.  In  the  first  institution  of  any  coin  within  this  kingdom  lie,  and 
he  alone  sets  the  weight,  the  allay,  the  denominated  value  of  all 
coin;[5]  this  is  done  commonly  by  indenture  between  the  king  and 
the  master  of  the  mint;  de  quo  postea. 

(g)  Flo.  Com.  3i6, 

[4]  By  the  9th  Sect,  of  the  Act  of  Congress  of  April  2,  1792,  ch.  16,  it  is  enacted, 
That  there  shall  be  from  time  to  time  struck  and  coined  at  the  mint,  coins  of  gold,  silver, 
and  copper  of  the  following  denominations,  values,  and  descriptions,  viz.:  Eagles — each 
to  be  of  the  value  of  ten  dollars  or  units,  and  to  contain  two  hundred  and  forty-seven 
grains  and  four-eighths  of  a  gram  of  pure,  or  two  hundred  and  seventy  grains  of  standard 
gold.  Half  Eagles — each  to  be  of  the  value  of  five  dollars,  and  to  contain  one  hundred 
and  twen(y-three  grains  and  six-eigiiths  of  a  grain  of  pure,  or  one  hundred  and  thirty- 
five  grains  of  standard  gold.  Quarter  Eagles — 'each  to  be  of  the  value  of  two  dollars 
and  a  half  dollar,  and  to  contain  sixty-one  grains  and  seven-eighths  of  a  grain  of  pure, 
or  sixty-seven  grains  and  four-eightlis  of  a  grain  of  standard  gold.  Dollars  or  Units — 
each  to  be  of  the  value  of  a  Spanish  milled  dollar  as  the  same  is  now  current,  and  to 
contain  tlirce  hundred  and  seventy-one  grains  and  four-sixteenth  parts  of  a  grain  of 
pure,  or  four  hundred  and  sixteen  grains  of  standard  silver.  Half  Dollars — each  to 
be  of  half  the  value  of  tiie  dollar  or  unit,  and  to  contain  one  hundred  and  eighty-five 
grains  and  ten-sixteenth  parts  of  a  grain  of  pure,  or  two  hundred  and  eight  grains  of 
standard  silver.  Quarter  Dollars — each  to  be  of  one-fourth  tiic  value  of  the  dollar  or 
unit,  and  to  contain  ninety-two  grains  and  thirteen-sixteenth  parts  of  a  grain  of  pure,  or 
one  hundred  and  four  grains  of  standard  silver.  Dismes — each  to  be  of  the  value  of  one- 
tenth  of  the  dollar  or  unit,  and  to  contain  tiiirty-seven  grains  and  two-sixtccnth  parts  "of 
a  grain  of  pure,  or  forty-one  grains  and  tliree-filtli  parts  of  a  grain  of  standard  silver.' 
Half  Dismes — each  to  be  of  the  value  of  one-twentieth  of  tlie  dollar,  and  to  contain 
eighteen  grains  and  nine-sixteenth  parts  of  a  grain  of  pure,  or  twenty  grains  and  four- 
fifth  parts  of  a  grain  of  standard  silver.  Cents — each  to  be  of  the  value  of  one- 
hundredth  part  of  a  dollar,  and  to  contain  eleven  penny  weights  of  copper.  Half 
Cents — each  to  be  of  liic  value  of  half  a  cent,  and  to  contain  five  penny  weights  and 
half  a  penny  weight  of  cop[)cr. 

[5]  The  power  to  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin,  is  con- 
ferred on  Congress  by  the  Constitution,  Art.  I  Sect.  8.  And  it  is  exclusive  in  Congress, 
the  States  being  expressly  prohibited '(jlr^.  1.  (See*.  10.)  from  coining  money;  though 


HISTORIA  PLACITORUM  CORONA.  191 

And  tho  by  special  charter  or  usage  clivers  prelates  and  monas- 
teries in  England  had  a  certain  number  of  stamps  for  the  coinage  of 
money,  as  the  abbot  of  St.  Edmundsbiiry,  Cluiis.  32  H.  3.  m.  15. 
dors,  the  archbishop  of  York,  Claus.  5.  E.  3.  part.  1.  m.  19.  and 
likewise  the  archbishop  of  Canterbury,  the  bishop  o{  Durham,  the 
bishop  of  Chichester,  kc-  de  quihus  vide,  statute  14  (§•  15  //.  S.  cap. 
12.  yet  they  iiad  only  the  prolit  of  the  coinage,  and  the  residence  of 
some  coiners  at  their  cities,  but  they  had  not  the  power  of  instituting 
either  the  allay,  the  denomination,  or  the  stamp;  the  stamps 
were  usually  sent  them  by  the  treasurer  and  barons  of  the  [  192  ] 
exchequer  by  the  king's  command  under  his  great  seal,  and 
tlie  masters  or  chief  officers  imployed  therein  were  sworn  to  the  king 
for  tlie  juBt  execution  of  their  places.[6]  Claus.  5.  E.  3.  part.  1.  m. 
10.  8,'  19. 

But  those  mints  have  been  long  disused,  tho  it  should  seem  by  the 
statute  of  14  H.  S.  cap.  12.  above-mentioned,  that  the  several  statutes 
made  against  exchange  of  money,  other  than  at  the  king's  exchanges, 
were  not  intended  to  prejudice  these  particular  franchises  of  coinage. 

2.  He  may  by  his  proclamation  legitimate  foreign  coin, [7]  and 
make  it  current  money  of  this  kingdom  according  to  the  value  im- 
posed by  such  proclamation;  but  the  counterfeiting  of  such  money 
was  not  treason,  till  the  statute -of  1  Mar.  cop.  6.  made  it  so,[S]  nor 
the  clipping,  washing,  impairing  thereof  was  not  treason  till  5  Eliz. 


they  ejfcrcise  the  authority  of  establishing  a  circulation  of  bank  paper  as  a  currency. 
Congress  have  enacted  a  number  of  laws,  which  will  be  referred  to,  regulating  the  mint, 
the  domestic  and  foreign  coin,  and  the  offences  relating  to  them. 

•[6]  The  Acts  establishing  and  regulatingthe  mint  of  the  United  States,  and  for  regulat- 
ing coins,  are  the  following  :  An  Act  establisliing  a  mint  and  regulating  the  coins  of  the 
United  Stales,  Ajnil  2,  1792.  cA.  IG.  An  Act  regulating  foreign  coins,  and  for  other 
purposes,  February  9,  1793.  ch.  5.  An  Act  in  alteration  of  the  Act  establishing  a  mint 
and  regulating  the  coins  of  the  United  Slates,  March  3,  1794.  eft.  4.  An  Act  supple- 
mentary to  an  Act  entitled,  "an  Act  to  establish  a  mint  and  regulating  the  coins  of  the 
United  States,"  March  3,  1795.  ch.  47.  An  Act  respecting  the  mint.  May  27,  1796, 
cA.  33.  An  Act  respecting  the  mint,  April  24,  1800.  ch.  34.  An  Act  concerning  the 
mint,  March  3,  1801.  ch.  21.  An  Act  to  prolong  the  continuance  of  the  mint  at  Fhila. 
delphia,  January  14,  1818.  ch.  4.  An  Act  further  to  prolongtlie  continuance  of  the  mint 
at  Philadelphia,  March  3,  1823,  ch.  42.  An  Act  to  continue  the  mint  at  the  city  of 
Philadelphia,  and  for  other  purposes,  May  19,  1828.  cA.  67.  An  Act  concerning  the 
gold  coins  of  the  United  Stales,  and  for  other  purposes,  June  28,  1831.  ch.  95.  An  Act 
to  establish  branches  of  the  mint  of  the  United  States,  March  3,  1835.  ch.  37.  An  Act 
Bupplementary  to  an  Act  entitled,  "an  Act  establishing  a  mmt,  and  regulating  the  coins 
of  the  United  States,"  January  18,  1837.  ch.  3.  An  Act  to  amend  an  Act  entitled,  an 
Act  to  establish  branches  of  the  mint  of  the  United  States,  February  ]3,  1837.  ch.  14. 
An  Act  amendatory  of  an  Act  establishing  the  brunch  mint  at  Danlonega,  Georgia,  and 
defining  the  duties  of  the  assayer  and  coiner,  Februari/  27,  1843.  ch.  46. 

[7]  Under  the  confederation,  the  continental  Congress  had  delegated  to  them,  |' the 
sole  and  exclusive  right  and  power  of  regulating  the  alloy  and  value  of  coin  struck  by 
their  own  authority,  or  by  tllat  of  the  States."  By  this  grant  there  was  no  jjower  given 
to  reguhite  the  value  of  foreign  coin  ;  a  defect  which  is  supplied  by  the  Constitution, 
Art.  1.  Sect,  8.  Story  on  the  Const.  16. 

[8 1  By  the  37  Geo.  3.  c.  126.  counteffeiting  foreign  gold  or  silver,  is  made  felony,  and 
puniiilied  with  transp  rtation  for  seven  years. 

VOL.  I.— 22 


192  HISTORY  PLACITORUM  CORONA. 

cap.  11.  and  18  EUz.  cap.  1.  but  all  these  statutes  allow  the  power  of 
legitimation  thereof  to  the  king  by  proclamation. (//) 

3,  He  may  inhanse  the  external  denomination  of  any  coin  already 
established  by  his  proclamation,  and  thus  it  hath  been  gradually  done 
almost  in  all  ages,  as  will  appear  by  what  follows  in  this  chapter; 
this  is  sometimes  called  imbasing  of  coin  and  sometimes  inhansing 
it ;  and  it  is  both,  it  is  an  inhansing  of  coin  in  respect  of  the  intrinsic 
value  or  denomination,  but  an  imbasing  in  regard  of  the  extrinsic 
value ;  as  for  instance,  when  in  the  lime  of  E.  4.  a  noble  was  raised 
to  a  higher  rate  by  twenty  pence;  vide  9.  E.  4.  49. 

4.  He  may  by  his  prerogative  imbase  the  species  or  material  of 
the  coin,  and  yet  keep  it  up  in  the  same  denominated  or  extrinsic, 
value  as  before,  namely  to  mix  the  species  of  money  with  an  allay 
below  the  standard  of  Sterling;  this  is  the  case  of  mixt  monies  in 
Sir  John  Davis^s  reports,  where  the  case  was  this. 

^^pril,  43  Eliz.  Brett  bought  wares  of  one  Gilbert  di  xneu 
r  193  ~\  chant  in  London,  and  became  bound  to  him  in  200/.  condi- 
tioned for  the  payment  of  one  hundred  pound  Sterling  cnx- 
rent  and  lawful  money  oi  England  in  September  following  at  Dub- 
lin in  Ireland:  24  May,4o  Eliz.  the  queen  sent  into  Ireland cexi^m 
mixt  money  from  the  tower  of  London  with  the  usual  stamp  and 
inscription,  and  declared  by  her  proclamation,  that  it  should  be  law- 
ful and  current  money  of  Ireland,  viz.  a  shilling  for  a  shilling,  and  six- 
pence for  six-pence,  and  that  accordingly  it  should  pass  in  payment, 
and  none  to  refuse,  and  declared  that  from  the  10th  oi  July  next  all 
other  money  should  be  decried  and  esteemed  only  as  bullion  and  not 
current  money.  Upon  the  day  of  payment  Brett  tendered  the  100/. 
in  this  mixt  money,  and  resolved  upon  great  consideration,  that  this 
lender  was  good,  the  place  of  payment  being  in  Ireland,  and  the  day 
of  payment  happening  after  the  proclamation  made;  that  altho  this 
■were  not  in  truth  Sterling,  but  of  a  baser  allay,  nor  a  money  current 
in  England  by  the  proclamation,  yet  the  payment  being  to  be  made 
in  Ireland,  it  was,  as  to  that  purpose,  current  money  of  England; 
but  if  the  day  had  been  passed  before  the  proclamation,  then  he 
must  have  answered  the  value,  as  it  was  when  payment  was  to 
have  been  made.  Sir  Jo lui  Davis's  reports,  ca^e  de  mixt  moneys. (i) 
h  is  true,  that  the  imbasing  of  money  in  point  of  allay  hath  not 
been  very  usually  practised  in  England,  and  it  would  be  a  dis- 
honour to  the  nation,  if  it  sliould,  neitlier  is  it  safe  to  be  attempted 
without  parliamentary  advice;  but  surely  if  we  respect  the  riglit  of 
the  thing,  it  is  within  the  king's  power  to  do  it;  for  tho  the  statute 
of  25  E.  3,  cap.  13.  above-mentioned  be  against  it,  yet  the  statute 
doth  not  absolutely  forbid  it;  and  altho  by  Poyning's  law  10  ^H.  7. 

(Ji)  See  also  8^  9  M''.  3.  cap.  25.  and  7  Ann.  cap.  25. .whereby  it  is  high  treason 
knowinfrly  to  make,  mend,  buy,  .sell,  or  have  in  possession  any  mould  or  press  for  coining, 
or  to  convey  such  instruments  out  of  the  king's  mint,  or  mark  on  the  edges  any  coin 
current,  or  to  counterfeit,  or  colour  or  gild  any  coin  resembling  the  current  coin  of  tlic 
kingdom.     And  sec  15  Geo.  2.  ch.  2d. 

(i)  Davis  Rep.  lb.  / 


HISTORIA  PLACITGRUM  CORONA.  193 

all  the  precedent  stalnies  in  Ens^land  are  of  force  in  Ireland,  yet 
that  resoUition  was  given  as  above. 

My  lord  Coke  in  his  comment  of  Jlrticuli  super  cartas,  cap.  20. 
seems  to  imply,  that  the  alteration  of  money  in  weight  or  allay  may 
not  be,  withotU  act  of  parliament,  and  for  that  purpose  cites 
the  Mirror  of  Jastices,(A^)  Ordein  fuU,  qe  mil  roy  de  ce  [  194  ] 
reame  ne  poit  chafi,^er  sa  money  ne  impayre,  7ie  amender, 
ne  autre  money  /aire,  qe  de  ore  ou  de  argent  sans  assent  de  touts 
ses  counties;  and  the  act  of  25  E,  3.  cap.  13.  the  statute  of  9  H.  5. 
sess.  2.  cap.  6.  that  all  money  of  gold  and  silver  shall  be  as  good 
weight  and  allay  as  is  now  made  at  the  Tower:  the  parliament-roll 
of  17  E.  3.  n.  15.(1)  which  was  an  accord  in  parliament  for  the 
present  amendment  and  increase  of  coin  de  fayre  une  mony  des 
bones  Esterlinges  en  Engleterre  du  poys  «§•  allay  del  aunt  lent  Ester- 
linges,  qe  avera  son  course  in  Engleterre  enter  les  graunts  4'  com- 
mons de  la  terre,  which  should  not  be  exported ;  and  if  those  of 
Flanders  would  make  money  of  as  good  an  allay  as  Esterlinges, 
that  it  should  be  current  between  merchant  and  merchant  here,  and 
and  others  that  would  receive  it,  which  was  a  temporary  provision 
for  the  increase  of  money. 

All  that  a  man  can  conclude  upon  these  is,  that  it  is  neither  safe 
nor  honourable  for  the  king  to  imbase  his  coin  below  Sterling:  if  it 
be  at  any  time  done,  it  is  fit  to  be  done  by  assent  of  parliament,  but 
certainly  all  that  it  concludes  is,  that  fieri  non  debuit,  but  factum 
valet.,  and  this  appears,[9] 

1.  By  that  resolution  in  the  case  of  mixt  monies,  which,  tho  it 
were  but  by  way  of  advice  and  in  Ireland,  is  of  great  weiglit,  espe- 
cially if  we  consider  the  consonancy  thereof  to  the  practice  in  Ire- 
land, which  tho  it  hath  the  same  law  of  25  E.  3.  in  force  there,  yet 
generally  their  coin  current  there  was  of  a  baser  allay  than  Ster- 
ling,even  before  the  proclamation  of  43  Eliz. 

2.  By  the  usual  inhansing  of  the  coin  in  point  of  value  and  de- 
nomination here,  which  tho  it  be  not  absolutely  an  imbasement  of 
the  coin  in  the  species,  yet  it  hath  very  near  the  same  effect. 

3.  By  the  attempts  that  have  been  made  to  restrain  the  change  of 
coin  without  consent  of  parliament.  Among  those  many  provisions 
by  the  lords  ordeiners,"5  E.  2.  n.  30.  that  much  abridged  the  king's 
power,  this  was  one,  pur  ceo  qe  a  touts  les  foys  qe  le  change  de 
mony  se  fait  en  royalme,  tout  le  people  est  grandment 
grievez  in  molts  des  manners,  nous  ordeinams,  qe  quant  [  195  J 
mestier  serra  &  le  roye  voile  exchange  faire,  qil  la  foce  par 
common  councell  de  son  baronage  &  ceo  en  parlement. 

But  these  ordinances,  and  this  among  the  rest  was  repealed  in  par- 
liament E.  2.  and  never  revived  again. 

(A-)  Cap.  1.  §.  3.  (Z)  See  Co.  P.  C.  p.  93. 

[9]  The  kmg's  prerogative  does  not  extend  to  the  debasing  or  enhancing  the  value  of 
the  coin,  below  or  above  the  sterling  value.    1  Bl.  Cum.  278.  1  East,  P.  C.  148. 


195  HISTORIA  PLACITORUM  CORONA. 

Eot.  Par.  20  E.  3.  n.  17.  "Item  qe  les  recevers  des  payments 
nostre  seigneur  le  roy  recenent  de  people  en  cliescun  place  auxi  bien 
or  come  argent  al  prise  assise  desicom  le  people  est  arte  de  eel  re- 
ceiver pur  payment,  &  qe  la  change  de  mony  de  or  ne  dargent  ne  se 
face  sans  assen  de  parlement.  Ro'.  Quant  aprimer  point  de  c'article 
soyt  tenus ;  quant  a  les  changes  fair  soit  Particle  monstre  a  nostra 
seigneur  le  roy,  «&.  as  graunts  qe  sont  perdervers  lui,  qils  ent  or- 
deignent  &  dient  lour  volunte." 

King  Henry  VIII.  imbased  the  coin  of  this  kingdom  in  point  of 
allay,  and  so  it  continued  during  the  residue  of  his  reign,  and  during 
the  reigns  of  Edward  VI.  and  queen  Mary,  in  so  much  that  the 
penny  had  not  above  a  half-penny  of  intrinsic  value;  but  queen 
Elizabeth  among  the  rest  of  her  excellent  methods  of  government, 
did  by  little  and  little  rectify  this  detestable  imbasement  of  coin: 

1.  By  prohibiting  exportation,  and  melting  down  of  good  silver. 

2.  By  reducing  the  brass  money  to  its  intrinsic  value.  3.  By  making 
a  good  allowance  (to  her  own  loss)  of  the  base  money  brought  into 
the  mint.  4.  By  stamping  of  new  money  of  just  allay  of  Sterling: 
Camd.  Eliz.  sub  anno  1560.  p.  48. 

While  I  wrote  this  a  proclamation  hath  issued,  dated  16'^?/^. 
1672,  whereby  copper  coin  of  half-pence  and  farthings  near  the  in- 
trinsic value  is  proclaimed  in  these  words:  "We  do  by  this  our 
royal  proclamation  declare,  publish  and  authorize  the  said  half- 
pence and  farthings  of  copper  so  coined,  and  to  be  coined,  to  be  cur- 
rent money,  and  that  the  same  from  and  after  the  16th  of  Jing. 
shall  pass  and  be  received  in  all  payments,  bargains,  and  exchanges 
to  be  made  between  our  subjects,  which  shall  be  under  the  value  of 
six-pence,  and  not  otherwise  nor  in  any  other  manner;"[10]  how 
far  this  makes  it  current  money,  videbimus  infra. 

And  thus  far  touching  the  power  of  denomination,  or  set- 
[  196  ]  ting  the  extrinsic  value  upon  coin;  the  manner  how  this  is 
done  will  be  shewn  hereafter. 

III.  The  third  essential  in  coin  is  the  stamp  or  impression,  for  tho 
it  may- be  possible,  as  Mr.  Stowe  says,  that  in  antient  time  money 
passed  in  England  without  a  stamp  or  impression,  yet  I  never  read 
any  such  thing  since  tlie  conquest,  for  that,  which  is  frequently  called 
blank  money,  was  not  money  without  impression,  but  white  money 
or  pure  silver,  or  at  least  Sterling  silver  coined,  for  otherwise  it  had 
jiot  been  an  apt  measure  for  commerce :  the  stamps  or  impressions, 
of  current  money  were  heretofore  delivered  to  tlie  master  of  the 
mint  from  the  exchequer,  but  of  later  times  they  are  delivered  by 
the  secretary  sometimes  with,  sometimes  without  the  indenture  of 
coinage:  now  touching  the  manner  of  the  legitimation  of  coin  Jii 
England,  it  is  sometimes  by  proclamation,  but  always  by  indenture 
between  the  king  and  the  master  of  the  mint. 

[10]  This  seems  to  have  boon  the  first  instance  of  the  introduction  of  copper  coin  into 
he  general  currency  of  England.    See  1  East.  P.  C.  148. 


HISTORIA  PLACITORUM  CORONA.  196 

And  therefore  where  Sir  John- Davis  in  the  case  vbi  S7ipra{m) 
makes  these  six  things  as  essentials  to  the  legitimation  of  coin, 
1.  Weight.  2.  Fineness.  3.  Impression.  4.  Denomination.  5.  Autho- 
rity of  the  prince.  6.  Proclamation.  The  last  is  not  always  neces- 
sary to  the  legitimation  of  coin,  for  theVe  is  scarce  any  king'^  reign, 
but  that  there  are  various  stamps  or  impressions  of  money,  which 
were  never  proclaimed,  and  therefore  if  upon  an  indictment  of  clip- 
ping or  counterfeiting  the  king's  coin  it  he  questioned,  whether  it  be 
the  king's  coin  or  no  upon  the  evidence,  there  is  not  a  necessity  of 
proof  thereof  by  a  proclamation,  but  it  is  a  meer  question  of  fact, 
which  nuist  be  left  upon  the  jury  by  circumstances  of  fact  to  find, 
whether  it  be  the  king's  money;  for  tho  there  misht  be  possibly  pro- 
clamation of  some  new  coins  in  the  beginning  of  the  king's  reigns, 
yet  it  would  be  impossible  to  prove  them  in  the  antient  coins  of 
Edward  VI.  queen  Mary,  queen  Elizabeth,  S^-c.  but  if  necessary  to 
be  supposed,  they  may  be  presumed,  ex  diuturnilate  temporis ;  the 
most  therefore  that  can  be  expected  is  to  produce  the 
ot^cers  of  the  mint  or  their  indenture  to  prove  a  coin  cur-  [  197  ] 
rent,  if  it  be  not  otherwise  commonly  known. 

But  proclamation  is  necessary  in  these  cases  following, 
1.  A  proclamation  with  proclamation-writ  under  the  great  seal  is 
necessary  to  legitimate  and  make  current  foreign  coin, [11]  and  with- 
out the  proclamation  it  is  neither  current  coin  of  this  kingdom,  nor 

(m)  19  h. 

[11]  The  Acts  relating  to  foreign  coin,  are  An  Act  to  provide  more  effectually  for  the 
collection  of  the  duties  imposed  by  law  on  goods,  wares,  and  merchandize,  imported  into 
the  United  Stales,  and  on  the  tonnage  of  vessels,  August  4,  17!iO.  ch.  35.  sect.  40.  An 
Act  relative  to  the  rix  dollars  of  Denmurk,  March  3,  1791.  ch.  19.  An  Act  regulating 
foreign  coins,  and  for  other  purposes,  February  9,  1793.  ch.  5.  An  Act  supplementary 
to  an  Act  regulating  foreign  coins,  and  for  other  purposes,  February  1,  1798.  ch.  ll. 
An  Act  to  regulate  the  collection  of  duties  on  imports  and  tonnage,  March  2,  1799. 
ch.  22.  sect.  61.  An  Act  to  suspend  in  part  the  Act  entitled,  "  An  Act  regulating  foreign 
coins,  and  for  other  purposes,"  April  30,  1802.  ch.  38.  An  Act  regulating  the  currency 
of  foreign  coins  in  the  United  Stales,  April  10,  1806.  ch.  22.  An  Act  regulating  the 
currency  within  the  United  States  of  the  gold  coins  of  Great  Britain,  France,  Portugal, 
and  iSpotn,  and  crowns  oi'  France  and  five  franc  pieces,  April  29,  1816.  ch.  139.  An 
Act  to  continue  in  force  an  Act  regulating  the  currency  witliin  the  United  States  of  the 
gold  coins  of  Great  Britain,  France,  Portugal,  and  Spain,  and  crowns  of  France,  and 
five  franc  pieces,  March  3,  1819.  ch.  96.  An  Act  to  continue  in  force  an  Act  entitled, 
"An  Act  regulating  the  currency  within  the  United  States  of  the  gold  coins  of  Great 
Britain,  France,  Portugal,  and  Spain,  and  crowns  of  France,  and  five  franc  pieces," 
March  3,  1821.  ch.  52.  An  Act  to  continue  in  force  an  Act  entitled,  "  An  Act  regulating 
the  currency  within  the  United  States  of  the  gold  coins  of  Great  Britain,  France,  Par. 
tugal,  and  Spain,  and  the  crowns  of  France,  and  five  franc  pieces,"  March  3,  1 823.  ch.  49. 
An  Act  regulating  the  value  of  certain  foreign  silver  coins  within  the  United  Stales, 
June  25,  1834.  ch.  71.  An  Act  regulating  the  value  of  certain  foreign  gold  coins  within 
iiie  United  Slates,  June  28,  183i.  ch.^G.  An  Act  supplementary  to  an  Act  entitled, 
An  Act  establishing  a  mint  and  regulating  the  coins  of  the  United  States,  January  18, 
1837.  ch.  3.  sect.  8.  An  Act  regulating  the  currency  of  foreign  gold  and  silver  coins  in 
the  United  States,  March  3,  1843.  c^.  69.  An  Act  to  fix  the  value  of  certain  foreign 
monies  of  accoutit  in  compensation  at  the  custom  house,  March  3,  1843.  ch.  92.  For 
fne  rales  of  estimating  foreign  coins  and  currencies,  see  the  Act  to  regulate  tlie  collec- 
tion of  duties  on  imports  and  tonnage,  2  March,  1799.  sect.  61. 


197  HISTORIA  PLACITORUM  CORONA. 

• 

is  the  counterfeiting,  clipping  or  diminishing  thereof  treason  with'in 
the  statute  of  1  Mar.  or  5  or  IS  Eliz.  for  the  words  in  these  statutes 
[and  by  proclitmation  allowed  and  suffered  to  be  current  here) 
refers  only  to  foreign  coin,  not  to  the  coin  of  this  kingdom;  but  tho 
it  be  not  proclaimed,  it  is  misprision  of  treason  to  counterf«it[12]  it- 
lay  the  statute  of  14  Eliz.  cap.  1. 

-  The  reason  is  especially  because  by  the  statute  of  17  R.  2.  cap.  1. 
no  foreign  coin  of  gold  or  silver  are  to  run  in  any  manner  of  pay- 
ment within  this  realm,  but  are  to  be  brought  as  bullion  to  the  mint 
to  be  turned  into  English  coin. [13] 

2.  A  proclamation  under  the  great  seal  is  necessary  to  legitimate  ' 
base  coin  or  mixt  below  the  standard  of  Sterlmg,  and  for  the  dis- 
pensing within  the  statute  of  25  E.  3.  cap.  13,  and  4  H.  5.  cap.  6. 
and  with  application  to,  that  case  the  opinion  of  ^ir  John  Davis^s 
report  touching  the  necessity  of  a  proclamation  seems  to  be  good  in 
law. 

3.  A  proclamation  under  the  great  seal  is  necessary,  when  any 
coin  already  in  being  is  inhansed  to  a  higher  denomination  or  ex- 
tritisic  value;  as  when  the  twenty  shillings  piece  of  gold  was  raised 
to  twenty-two  sliillings,  because  it  was  once  current  money  under 
another  denomination;  thus  it  was  done  upon  the  inhansing  of 
twenty  shillings  and  ten  shillings  pieces  by  king  James. 

4.  A  proclamation  is  necessary  when  any  money,  that  is  current 
in  usage  or  payment,  is  decried;  thus  it  was  done  in  the  case  of  43 
Eliz.  for  the  Slerlins^  money  in  Ireland  before  mentioned;  and  thus 
it  was  done  by  the  Pollards  and  Crocards  tempore  E.  1.  {n)  Dy.  83. 
and  by  the  several  base  monies  mentioned  in  Jirticuli  de  tnonetd, 

namely  the  money  with  the  mitre  and  with  the  lyons,  which 
[  198  ]  it  seems  were  minted  in  England,  besides  the  other  foreign 
money  therein  mentioned. (o) 

5.  Altho  in  the  case  of  money  newly  coined  by  the  king's  autho- 
rity in  ^«o-/ri?^(/  a  proclamation  is  not  absolutely  neces.sary  to  the 
legitimation  thereof  or  making  it  current,  yet  to  incluce  a  contempt 
upon  such  as  refuse  to  take  it  in  payment  such  proclamations  havA. 
not  been  altogether  unusual,  and  by  the  red  book  of  the  exchequer 
seems  necessary  for  that  purpose;  for  how  can  men  reasonably 
know  at  first,  whether  this  be  the  king's  coin  without  some  sucli 
public  notification,  where  long  use  and  custom  hath  not  made  the 
stamp  or  coin  familiarly  known  to  those,  that  are  to  receive  it:  vide 
proclamations  for  money  newly  made  principally  upon  this  account, 
Claus.  IS  E.  3.  part  1.  m.  28  4'  12.  dors.  Claus.  IS  E.  3.  part  2. 

(n)  D'lvis  21.  h.  Sec  the  nolo  in  Rapin's  hist,  suh  fine  Ed.  1. 

(tt)  And  tlius  it  waH  lately  done  in  tlie  cu.se  of  tiie  broad  pieces  of  twenty-five  shillings 
and  twcuty-threc  shillings. 


[12]  It   is  a  misdenieanor,  by  tlie  43  Geo.  3.  c.  139,  to  counterfeit  foreign  coin  not 
current  by  procinmation,  but  resembling  copper  or  mixed  metal  coin  of  a  foreign  state. 
[n]lEast,r.C.Wd. 


HISTORIA  PLACITORUM  CORONA.  198 

m.  \^.  dors.  Claus.  19  E.  S.  part  1.  m.  23  5'  pari  2.  m.  15.  dor  a. 
Claus.  20  E.  2,.  part  2.  m.  20.  dors,  and  25  E.  3.  m.  14.  dors.  But 
yet  the  money  is  the  lawful  money  of  England,  aiid  he  that  coun- 
terfeits it  is  within  the  law  of  25  E.  3.  for  treason,  tho  there  be  no 
such  proclamation  :  vide  Libr.  Ruhr.  Scaccarii,  fol.  259.  «  Impri- 
mis oportet  ut  omnem  monetam  prsecedat  constructio  allaii,  viz. 
ponderisque  &  numeri  ipsius  monetas  distincie  &  apte  continens 
moderamen,  deinde  inchoanda  est  &  perficienda  ex  edicto  aut  licentia 
principis  speciali,  &  publicanda  per  proclamationem  prasconis  ipsius 
principis  publice,  ut  mos  exigit  faciendum,  &  tunc  usui  apta  erit :  ita 
ut  ex  tunc  non  sit  impune  a  quoquam  de  populo  recusanda.  Qui- 
ctmque  autem  clam  vel  aperte  vel  paliim  absque  licentia  principis 
cujuscunque  monetae  contrafactionem  attemptasse  convictus  fuerit, 
corporaliter  plecti  solet." 

And  now  I  shall  give  a  brief  history  of  the  variation  of  the  coin  of 
England. 

It  appears  by  all  the  antient  monuments,  that  I  have  seen,  that  the 
use  of  coin  or  money  was  antient  and  long  before  the  conquest. (/?) 

It  is  true  tliat  Gervasius  Tilburiensis,  who  wrote  the 
black  book  of  the  exchequer  in  the  time  of  Henry  II.  com-  [  199  ] 
monly  called  magister  <§•  discipiihis,  Lib.  I.  cap.  a  cjidbus 
8}'  ad  quid  instituta  fuit  argcnli  purgatio,  says,  that  in  the  times 
^f  king  William  I.  IVilliam  II.  and  Henry  I.  the  antient  farms  of 
the  king's  demesnes  were  answered  in  cattle,  corn,  and  other  provi- 
sions in  specie,  because  it  saved  the  king  the  trouble  of  purveyors, 
and  money  was  scarce  among  the  people,  and  yet  the  reservations  of 
their  rents  were  in  money,  viz.  so  many  pounds  numero,  or  so  many 
pounds  hlanc;  de  quibus  infra. 

And  to  make  an  equation  between  the  provisions,  that  were 
answered  in  kind,  and  the  rents  that  were  reserved,  there  were  cer- 
tain rates  or  prices  agreed  upon  almost  all  such  provisions,  as  for 
wheat  for  one  liundred  men  per  diem  twelve  pence,  for  a  fat  ox 
twelve  pence,  &c.  which  it  seems  were  delivered  to  the  sheriff  and 
by  him  answered  to  the  king  in  money  or  kind,  as  it  was  agreed. 

But  those  farm  rents,  that  were  reserved  out  of  the  cities,  boroughs, 
franchises,  &c.  because  they  had  not  provisions  in  kind  were  answered 
in  money  according  to  their  reservations. 

In  the  time  of  Henry  I.  this  answering  of  farms  by  provisions 
ceased,  and  the  tenants  paid  their  money  according  to  the  letter  of 
their  reservations;  the  king  was  weary  of  receiving,  and  the  farmers 
weary  of  paying  their  rents  in  victuals  and  provisions,  but  money 
still  was  in  use  as  the  common  instrument  of  commerce  and  valua- 
tion. 

In  the  troublesome  time  of  king  Stephen  we  are  told  by  Roger 
Hoveden  sub  anno  1149.  Omnes  potentes  tarn  episcopi,  quam 
comities  S,'  barones  siiam  faciebant  monetam,  which  occasioned  a 

(p)  Tliat  money  was  coined  here  in  the  time  of  the  Saxons  is  sufficiently  plain,  but  it 
h  very  doubltVil  whether  the  Britons  ever  coined  any;  in  Casar's  time  they  used  only 
iron-rings,  or  piccee  of  brass;   Casar,  Com.  de  B.  G.'lib.  5,  m.  12. 


199  HISTORIA  PLACITORUM  CORONA. 

great  confusion  and  corruption  in  money  and  commerce  :(y)  Henry 
II.  coming  to  the  crown  reformed  this  usurpation  and  abuse,  novam 
fecit  monetam,  qiise  sola  accept  a  erat  fy  recepta  in  regno  ;[7')  and 
thus  it  hath  hitherto  obtained,  only  some  particular  corpora- 
r  200  ]  tions  ecclesiastical,  as  bishops  and  abbots  had  special  privi- 
leges granted  to  them  to  have  mints,(,y)  some  one  stamp, 
some  two,  some  more,  which  yet  were  sent  to  them  from  the  king's 
exchequer,  and  their  officers  sworn  to  the  king  to  deal  faithfully  in 
their  offices. 

Yet  after  this  king's  time,  especially  in  the  beginning  of  king' 
John's  time,  there  was  a  great  uncertainty  and  disorder  both  in  the 
weight  and  allay  of  coin;  for  Clans.  7  Johanyi,  rn.  24.  Sciatis  quod 
recipimus  per  manum  Petri  de  Ely,  S^c.  trecentas  libras  numero, 
quae  ponderuhant  quingentas  libras  47s.  Sd.  and  in  the  same  roll, 
m.  25.  recipimus  de  Thesauro  per  manus  Petri  de  Ely,  1725/.  & 
11,9.  Qd.  numero,  quw  ponderabant  1556/.  17*.  Qd.  which  holds  no 
proportion  with  the  former. 

Henry  III.  had  a  troublesome  reign,  and  ra'alefactors  abounded, 
especially  in  relation  to  the  clipping  of  money;  in  his  thirty-second 
year  he  made  new  money,  and  ordained  ne  quis  denarius,  nisi 
legiiimi  ponderis  Sj-  circular  is  for  mm  uteretur,  dipt  money  not  to 
be  received  but  perforated,  and  divers  offenders  were  hanged.  Mat. 
Paris  sub  anno  1248 ;(/)  but  we  have  not  the  just  standard  of 
weight  of  his  money. 

In  the  time  of  Edward  I.  we  know  what  the  weight  and  allay  of 
his  current  money  was,  namely  the  allay  was  Sterling,  twenty  shil- 
Hngs  made  a  pound  weight  troy,  and  twenty  pence  an  ounce,  so  that 
the  pound  of  Sterling slUerm^de.  two  himdred  forty  Sterling  pence. 

There  were  other  base  monies  in  his  time,  as  namely,  those  that 
were  decried  by  \he  ^rticuli  de  monefd,  and  Pollards  nnd  Cro- 
cards;  what  the  value  of  the  latter  was  I  know  not,  but  it  appears 
by  Clans.  2d>  E.  1.  m.  6.  quod  pro  qualibet  libra  pollar dor um  una 
marca  Sterlingorum  solvitur  ad  Scaccarium:  they  were  both 
decried  in  the  28  E.  l.{u)  Vide  Dy.  SI.  This  rate  oi  Sterling  cow- 
tinued  during  some  time  of  Edward  II. 

{q)  William  of  Newbury  writes  tlius  under  the  reign  of  king  Stephen,  Erant  in  Anglia 
qundammodo  tot  rcises  vel  potius  tijranni  quot  doviini  castelloruTn,habente8  singuli  ptrcui- 
suram  pioprii  numismntis. 

(r)  iSee  Wilk.  Leir.Ucnrij  11.  p.  320.  where  these  Words  are  also  jiddcd,  ahdicata  jam 
procermn  ilia;  the  truth  is,  this  reformation  of  the  money  began  to  be  made  towards  the 
Jatlcr  end  oi' Siephe.n^s  reign,  for  among  tlie  artieles  of  pcaec  between  Stephen  and  Henry 
this  was  one,  that  the  silver  coin  should  be  one  and  the  same  throughout  the  liingdoin. 
Jbid.  p. '315.  Mat.  Paris,  p.  13:). 

(s)  See  a  charter  of  king  Julin  allowing  this  privilege  to  Hubert  archbishop  o(  Canter- 
bury. Wilk.  Leg.  Johannis,  p.  355. 

(t)  p.  I'll. 

(w)  As  appears  by  the  proclamation,  Quad  J'ollardi  Sf  Crokardi  nan  currant  in  regno 
AngliiB,  Claus. .28  E.  1.  m.  12.  dors,  by  which  record  it  also  appears,  tiiat  two  Ptillards 
and  cne  Sterling  were  much  about  the  same  value;  for  the  words  are  Licet  nnper  pro 
communi  vtilitate  reirni  nnstri  dc  concilia  nostra  ordinavimns,  quod  duo  I'ollardi,  vcl  duo 
Crokardi  currerent  in  eodein  regno  pro  uno  Stcrlingo. 


HISTORIA  PLACITORUM  CORONA.  201 

I  have  not  seen  anv  indentures  of  the  mint  between  the 
time  of  Edward  II.  and  the  46  Edward\l\{x)  and  then  by  [201  ] 
the  indenture  of  the  mint  Clans.  46  E.  3.  m.  18.  a  pound  of 
gold  made  forty-five  nobles, each  noble  six  shillings  and  eight  pence, 
and  was  to  consist  of  twenty-three  carets,  three  grains  and  an  half  of 
fine  gold,  the  rest  allay;  the  coinage  to  be  four  shillings  for  each 
pound  for  the  master  of  the  mint,  and  twelve  pence  for  the  king;  the 
pound  valued  at  fifteen  pounds,  and  the  merchant  upon  the  return 
to  have  out  of  the  Tower  fourteen  pounds  fifteen  shillings. 

A  pound  of  silver  was  to  make  three  hundred  pence,  and  so  in 
that  proportion  groats,  half-pence,  and  farthings,  which  was  to  be  of 
the  allay  du  viel  Esterling.viz.  eleven  ounces  two-penny  weight  of 
fine  silver,  and  eighteen  penny  weight  of  allay;  eight  pence  to  be 
allowed  for  coinage. 

The  next  Indenture  I  find  is  3  H.  4.  p.  2.  m.  9.  dors,  whereby  a 
farther  alteration  was  made. 

The  pound  of  gold  made  the  same  quantity  of  nobles,  and  was  of 
the  same' allay  as  before,  only  upon  every  pound  was  allowed  three 
shillings  and  six  pence  to  the  master,  and  one  shilling  and  six  pence 
to  the  king  for  coinage. 

Tlie  silver  coin  of  the  same  fineness,  weight  and  allay,  as  by  the 
iadenture  of  46  E.  3.  the  coinage  eight  pence,  whereof  seven  pence 
to  the  master,  and  one  penny  to  the  king  upon  every  pound  weight. 

Claus.  1  H.  5.  m.  35.  dors,  the  allay  of  gold  and  silver  still  the 
same  as  before,  but  some  other  variance  there  was. 

The  pound  of  gold  was  now  to  make  fifty  nobles,  the  value  of  the 
whole,  pound  to  be  sixteen  pounds  thirteen  shillings  and  four  pence, 
the  coinage  five  shillings. 

The  pound  of  silver  was  to  make  three  hundred  and  sixty 
pence,  the  coinage  was  nine  pence  to  the  master,  and  three-  [  202  ] 
pence  to  the  king;  so  that  now  the  pound  of  silver  made 
thirty  shillings  Sterling,  whiWi  began  in  Rot.  Pari.  13  H.  A.  n.  28. 
by  ordinance  of  parliament. 

Claus.  9  H.  5.  m.  2.  dors,  the  same  weight  and  allay  of  gold,  viz. 
every  pound  of  gold  to  make  fifty  nobles,  the  coinage  to  the  king 
three  sliillings  and  six  pence,  to  the  master  eighteen  pence. 

The  like  as  to  silver  in  all  points  as  by  the  indenture  of  1  H.  5.  only 
the  master  to  have  nine  pence,  the  king  three  pence  for  coinage. 

Claus.  1.  H.  6.  m.  13  ^-15.  The  indenture  agrees  in  all  things 
with  that  of  9  H.  5. 

Clans.  4.  E.  4.  m.  20.  The  king  by  proclamation  inhanseth  the 
v^lue  of  coin,  so  that  the  noble  of  gold,  which  before  was  six  shillings 

(ar^  But  among  the  records  in  the  Tower  there  are  several  indentures  to  be  found 
within  that  time,  viz. 

Clavs.  18  E.  S.p.Q.m.  19.  d. 
Pat.  18  E.  3.  p.  I.  m.  27. 
Claus.  23  E.  'S.  p.  I.  m.  21.  d. 
Claus.  25.  E.  3.  m.  15.  d. 
Clans.  29.  E.  3.  in.  6.  d. 
Claus.  35  E.  3.  m.  10.  d. 
VOL.  I. — 23 


202  HISTORIA  PLACITORUM  CORONA. 

and  eight  pence,  is  now  raised  to  eight  shilHngs  and  four  pence,  three 
groats  make  a  shilling,  and  so  do  twelve  pence,  and  twenty  shilUngs 
make  a  pound. 

And  afterwards  he  made  new  coins  according  to  the  standard  of 
gold  aforesaid,  viz.  the  nohle  of  gold  eight  shillings  and  four  pence, 
and  the  pound  of  silver  raised  to  thirty-seven  shillings  and  six  pence  ; 
and  now  I  shall  follow  John  S/owe  in  his  Survey  of  London, p.  47. 

H.  7.  raised  the  rate  of  Sterling  silver  coin  to  forty  pence  the 
ounce. 

18  H.  8.  the  pound  of  silver  coin  was  raised  to  forty  shillings. 
■  35  H.  8.  the  coin  of  gold  was  raised  to  forty  shillings  the  ounce, 
the  coin  of  silver  to  four  shillings  the  ounce,  and  coins  of  base  money 
of  allay'below  Sterling  were  coined,  viz.  shillings,  six-pences,  four- 
pences,  two-pences,  pennies:  these  were  decried  in  5  E.  6.  and  the 
shilling  reduced  to  nine-pence,  and  after  to  six  pence. (y) 

30  Octob.  5  E.  6.     Silver  sterling  coin  inl)ansed  to  five 
[203]   shillings  the  ounce,  and  so  proportionably  ;  and  coins  of  fine 
gold,  a  whole  sovereign  was  thirty  shillings,  an  angel  ten- 
shillings,  and  base  money  to  pass  as  before. 

2  Eliz.  The  base  money  was  called  in  and  brought  to  the  mint 
and  reduced  to  Sterling  and  new  coined,  and  the  dross  given  to  re- 
pair the  highways, 

16  Novemb.  2  Jac.  By  proclamation  the  new  coins  of  gold  and 
silver  then  made,  together  with  their  impressions,  inscriptions,  weight, 
and  values  were  proclaimed;  and  23  Novemb.  9  Jac.  per  proclama- 
tion the  coins  of  gold  are  inhansed,  r/^r.  thirty  shillings  to  thirty-three 
shillings,  twenty  shillings  to  twenty-two  shillings,  fifteen  shillings  to 
sixteen  shillings,  ten  shillings  to  eleven  shillings,  five  shillings  to  five 
shillings  and  six-pence. 

Upon  these  variations  these  things  are  nevertheless  observable, 
First,  That  the  old  Sterling  gold  is  this,  that  one  pound  of  Sterling 
gold  contains  twenty-three  carets  three,  grains  and  a  half  of  fine  gold, 
the  rest  to  make  it  up  twenty-four  carets  is  of  allay  of  copper.  Se- 
condly,  That  the  old  standard  oi  Sterling  silver  is,  that  every  pound 
weight  of  Sterling  silver  consist  of  eleven  ounces  two  penny  weight 
of  fine  silver,  and  eighteen  penny  weight  of  allay  of  copper.  Thirdly, 
That  this  rate  of  *S'/er//«^gold  and  silver  hath  most  plainly  coiuinued 
to  be  the  standard  of  English  gold  and  silver  coin,  at  least  from  the 
time  o{  Henry  III.  until  this  day  in  jGn^/an^/ without  any  considera- 
ble alteration,  saving  that  base  money,  which  was  stampt  in  the  time 
o{  Henry  VIII.  and  then  reduced  to  a  lower  valuation  by  Edward 
VI.  and  after  re-established  by  Edward  VI.  to  its  former  value. 
Fourthly,  That,  as  well  in  England  diS  Ireland,  there  hath  been  im- 
basing  of  the  species  of  money,  as  appears  in  these  two  instances  in 
the  time  of  Henry  VIII.  and  Edward  VI.  which  are  yet  the  only 
instances  that  I  find  of  that  nature  in  England.  Fifthly, That  queen 
Elizabeth  decried  by  proclamation  all  tliat  base  money,  which  was 
in  use  in  the  time  of  her  father  and  brother,  and  ever  since  that  pro- 

(y)  Dyer  82. 


HISTORIA  PLACITORUM  CORONiE.  203 

clamation,  viz.  2  Eliz.  the  true  old  Sterling  standard  both  of  gold 
and  silver  hath  been  the  only  standard  of  the  English  current  money. 
Sixthly,  That  all  ho  the  standard  of  Stey^ling  hath  with  great 
constancy  obtained  in  England,  yet  the  denomination  or  ex-  [  204  ] 
trinsic  or  imposed  value  hath  varied  according  to  the  plea- 
sure of  the  king  both  as  to  gold  and  silver  coin,  as  appears  by  what 
goes  before  ;  for  in  Edward  I's  time  the  ounce  of  Sterling  silver  was 
twenty  pence,  the  pound  twenty  shillings  or  two  hundred  and  forty 
pence ;  in  Edward  UVs  time  the  pound  of  Sterling  was  three  hundred 
pence;  in  the  time  of  Henry  V.  and  so  downward  to  Edward  W. 
three  hundred  and  sixty  pence,  or,  which  is  all  one,  thirty  shillings; 
in  the  time  of  Edward  IV.  the  pound  of  silver  was  thirty-seven  shil- 
lings and  sixpence;  in  35  H.  8.  the  pound  of  Sterling  silver  was 
forty  shillings  ;  in  5  £.  6,  and  so  down  to  this  day  the  ounce  of  silver 
five  shillings  or  sixty  pence,  and  the  pound  of  Sterling  silver  three 
pounds  or  seven  hundred  and  twenty  pence,  which  in  Edward  Ps 
time  was  only  two  hundred  and  forty  pence,  which  now  is  thrice  as 
much  as  then  it  was.  Seventhly,  That  I  find  rarely  any  proclama- 
tion for  the  setting  of  the  rate  of  new  coin,  but  only  as  before,  when 
the  denomination  of  wliat  is  in  being  is  inhansed,  or  abated,  or  re- 
called;  so  that  the  indenture  of  the  mint  and  common  reputation  is 
that,  which  must  try  what  is  English  money.  Eighthly,  That  I 
never  find  either  in  the  indentures  of  the  mint  or  any  proclamation 
the  stamp,  impression,  or  inscription  described,  unless  in  that  of  king 
James,  because  the  stamps  are  agreed  upon  between  the  king  and 
the  master  of  the  mint,  and  delivered  to  him  by  the  king,  or  his 
warrant  either  of  the  great  seal,  privy  seal,  signet,  or  secretary 
of  state. 


CHAPTER  XVIII.  [205] 

CONCERNING    THE    ADULTERATION    OR    IMPAIRING    OP    COIN,  AND   THE 
ANTIENT    MEANS    USED    TO    REMEDY    IT. 

The  decays  or  impairment  of  coin  is  either  in  weight  or  allay,  the 
former  may  happen  by  some  abuse  of  the  moniers  or  minters;  or  by 
the  subtiliy  of  clippers,  washers  and  other  impairers  of  coin  ;  the 
latter,  viz.  impairment  in  allay,  can  only  happen  either  by  the  dis- 
honesty of  the  moniers  or  minters,  or  by  the  counterfeiting  of  coin. 

Antiently,  all  money  was  paid  in  number,  namely  so  many  pieces 
made  a  pound,  and  this  was  the  common  reservation  and  account  of 
all  farms,  and  the  estimating  of  accounts,  vicecumes  A.  reddit  compo- 
tuni  de  100/.  numero,  or  in  thesanro  100/.  niimero. 

But  this  did  not  answer  all  intentions,  for  the  money  that  was 
paid  in,  might  be  dipt,  or  otherwise  rendered  light,  or  might  be 
counterfeit,  or  of  base  allay. 

For.  remedy  whereof  there  was  practised  these  three  methods  of 


205  HISTORIA  PLACITORUM  CORONA. 

rectifications  of  payments  at  the  exchequer,  that  the  king  might  not 
be  deceived,  and  these  were  successively  used  in  the  excliequefy 
which  we  may  read  Gervafi.  Tilb.  Lib.  I.  supra  guibus. 

1.  Solutio  ad  sca/am,  which  it  seems  was  a  dish  or  measure, 
whereby  they  measured  their  money,  as  well  as  told  it,  for  that  is 
llie  proper  signification  of  scula:  but  in  process  of  time  this  was 
turned  into  a  measure  of  money,  which  was  an  addition  of  six- 
pence for  every  pound,  to  avoid  the  trouble  of  that  probation, 
whereby  an  hundred  pounds  mimero  amounted  to  an  hundred 
pounds  and  fifty  shillings  ad  scalam;  and  so  we  have  frequently  in 
the  old  pipe  rolls  of  Henry  II.,  Richard  I.,  king  John,  &c.  in  the 
sauro  lOOl,  ad  scalam. 

2.  Solutio  ad  pensum,  which  was  the  answering  of  every 
r  206  ]  pound  of  money  by  weight  of  a  pound  weight  troy,  for  ia 
those  times  the  libra  argenti  com  d^xA  or  was  to  answer  a 
pound  weight  troy,  and  therefore  the  payer  was  to  make  it  good  of 
that  weight  by  answering  the  full  weight;  this  gave  the  frequent 
title  of  the  old  pipe-rolls,  also  in  thesauro  100/.  ad  pensum. 

But  altho  this  solutio  ad  scalam  or  ad  pensum^  especially  both 
together,  did  give  some  help  against  the  defect  of  coin  in  weight,  as 
by  clipping,  washing,  or  the  like,  yet  it  did  not  help  as  to  adulterate 
money  of  baser  allay  than  the  standard:    Therefore, 

3.  There  was  found  out  in  the  time  of  Henry  II.  a  third  trial, 
namely  trial  by  fire  or  combustion,  and  if  it  were  of  the  just  allay 
it  was  allowed,  if  below  the  allay  the  payer  was  to  make  it  good, 
and  hence  he  was  said  dealbare Jirmam ;  and  hence  grew  quickly  a 
difi'erence  between  reservations  and  payments  of  so  much  money 
7^^m^t?/'o,  and  so  much  money  blafic. 

A  reservation  of  so  much  money  generally  was  intended  of  so 
much  niirnero,  as  if  a  pound  were  reserved,  it  was  in  effect  but 
twenty  shillings  in  pecuniis  numeratis ;  but  if  it  were  expressly- 
said  so  much  money  blanc,  then  it  was  answered  in  blanc  money, 
but  yet  with  this  difference,  that  if  a  farm  were  letten  and  so  much 
rent  generally  reserved,  it  should  be  intended  so  much  numero,  in 
pecuniis  numeratis;  but  if  a  franchise  or  liberty  were  granted,  and 
so  much  rent  generally  reserved  without  sayiiig  blanc  or  numero,  it 
Was  commonly  intended  blanc,  unless  expressly  said  reddendo  so 
much  money  numero,  and  therefore  in  such  a  case  the  former  was 
bound  dealbare  Jirmam,  that  is,  to  answer  so  much  as  would  make 
his  payment  to  be  so  much  good  in  fine  silver,  or  very  near  it  at 
least,   Gervus.  Tilb.  Lib.  II.  cap.  quid  sit,  quosdam  fundqs 

dari  blanc,  quosdam  numero. 

And  therefore  upon  all  the  antient  accounts  in  the  pipe,  made  by 

the  sheriff,  we  shall  find  some  of  his  accounts  of  rents  to  run  mimero, 

some  of  them  to  run  blanc,  viz.  Jirma  comitatus  numero,  <§•  firma 

comitatus  blanc,  according  to  the  variety  of  their  reserva- 

("2071  tions  or  the  things  out  of  which  they  are  reserved;  now 

what  the  proportion  was,  between  so  much  money  blanc 


HIST0RIA  PLACITORUM  CORONiE.  207 

and  so  much  money  nurnero  in   those  antient  times,  or  what  this 
blanc  money  was,  is  worth  the  inquiring. 

I  have  formerly  thought  that  blanc  money  was  nothing  else  but 
Sterling,  and  that  dealbare  firmam  was  no  more,  than  to  reduce 
money  to  the  true  allay  oi  Sterling ;  but  upon  consideration  I  think 
blanc  money  was  truly  so  much  tine  silver  without  any  allay,  and 
that  the  true  allay  of  Sterling  silver  or  the  antient  standard  was 
twelve  penny  weight  only  of  copper  to  every  pound  weight  of 
silver;  and  tlierefore  he,  that  upon  his  reservation  was  to  pay  one 
hundred  pounds  of  blanc  money,  was  to  answer  to  the  king  upon 
every  pound  of  Sterling  money  one  shilling  to  countervail  the  value 
of  the  allay  of  copper  in  every  pound  weight  troy  of  silver. 

And  hence  it  is,  that  the  farms  of  most  corporations  antiently  let 
with  liberties,  if  one  hundred  pounds  per  annum  were  reserved, 
usually  answered  one  hundred  and  five  pounds,  the  five  pounds 
being  to  answer  the  allay  of  one  of  copper  in  the  whole  quantity. 

21  H.  3.  in  compoto  comitatus  North' ton  summa  totalis  102/.  3.?. 
Id.  de  quo  4/.  \is.  4d.  blanc,  quae  sunt  extensae  ad  4/.  13s.. 9a?.  subtra- 
huntur  ad  perficiendum  corpus  comitatus  &  remanet  97/.  13^.  lO^.(a) 
de  quibus  respondet  de  proficuo  in  magno  rotulo. 

Clans.  19  H.  3.  p.  1.  w.  2.  Sciatiis  quod  pardonavimus  dilectse 
&  fideli  nostrse  J2.  comitissa3  Pembroch  centum  triginta  &  quinque 
libras  blanc,  (\\\^  extensse  sunt  ad  141/.  \5s. 

13  E.  3.  m  compotu  Bedford  &  Bucks,  Nicholaus  Basselew  IS/. 
45.  4^.  ninnero pro  111.  Is.  blanc. 

That  of  19  H.  3.  exactly  answers  twelve  pence  per  pound,  which 
amounts  to  six  pounds  fifteen  shillings,  and  added  to  one  hundred 
thirty-five  pounds  make  just  one  hundred  forty-one  pounds  fifteen 
shillings. 

And  the  other  estimate  is  very  near  the  same  account,  bating  the 
difficulty  of  small  fractions,  four  pounds  nine  shillings  and 
four  pence,  with  the  adding  of  twelve  pence  for  every  pound  [  208  jj 
to  make  it  Sterling,  amounts  to  about  four  shillings  and  six 
pence,  which  added  to  four  pounds  nine  shillings  and  four  pence 
make  four  pounds  thirteen  shillings  and  ten  pence;  so  the  allay  of 
Sterli}ig  at  that  time  seems  to  be  twelve  pence  of  copper  to  every 
pound  of  silver. 

The  sum  therefore  is,  1.  That  blanc  ferme  ox  blanc  money  was  the 
estimate  of  money  in  pure  silver  without  allay,  and  accordingly  it 
was  to  be  answered,  viz.  one  hundred  pounds  blanc  was  to  answer 
one  hundred  and  five  pounds  numero.  2.  That  di  ferme  or  sum  of 
money  numero  was  so  much  Sterling  money  according  to  the  stand- 
ard of  those  times.  3.  That  the  standard  of  Sterling  money  in  those 
times  was  finer  than  it  hath  been  since  the  time  of  Edward  I.  name- 
ly Sterling  was  then  eleven  ounces  eigiit  penny  weight  finer  silver, 
and  twelve  penny  weight  of  allay.  4.  That  when  at  the  exchequer 
they  burnt  the  money  to  make  assay  of  it,  in  case  twenty  shillings 

(a)  This  should  be  97/.  9s.  lOd. 


208  HISTORIA  PLACITORUM  CORON.^. 

numej'O  were  reserved,  it  sufficed  if  it  held  the  allay  of  Sterling,  vi^. 
eleven  ounces,  eight  penny  weight  of  pure  silver,  and  twelve  penny 
weight  of  allay ;  but  if  it  were  reserved  6/ffnc,  tlien  tho  good  Ster- 
ling  vyas  brought  to  the  test,  yet  it  went  for  less  than  Sterling  by 
twelve  penny  weight  in  every  pound,  and  therefore  they  were  to  add 
five  pounds  in  the  hundred  to  make  it  up  blanc.  5.  But  when  this 
probation  grew  troublesome,  and  Sterling  money  was  well  estab- 
lished, then  they,  that  were  to  pay  one  hundred  pounds  blanc,  paid 
one  hundred  and  five  pounds  Sterling,  as  the  common  estimate  of 
blanc  money:  it  seems  that  in  king  John's  time  the  standard  of  »S7er- 
ling  money  was  far  lower  and  worse,  than  at  any  lime  before  or 
after,  especially  towards  the  latter  end  of  his  reign. 

The  borough  of  f'Fich  was  antiently  from  the  conquest  till  17  Jo- 
hann.  held  at  the  yearly  rent  of  eighty  pounds  per  annum  blunc, 
which  was  answered  by  the  sheriff  in  the  times  of  Henry  II.  and 
Richard  I. 

7  Johann.  the  king  granted  the  borough  of  Wich  to  the  town  at 
the  farm  rent  of  one  hundred  pounds  Sterling:  in  the  pipe- 
~\  209  ]  roll  of  24  H.  3.  homines  de  Wico  reddunt  compotiim  de  100/. 
numero,  pro  80/.  blanc,  which  imports  these  sums  to  be 
equal,  and  afterwards  43  H.  3.  homines  c?e  Wico  reddunt  compotum 
deSOl.  bhuic,  qux  sunt  extensx  ad  S-il.  and  in  17^.  3.  this  eighty-four 
pounds  was  raised  to  eighty-nine  pounds  five  shillings  numero  upon 
the  extent,  \M\\\c\\ferme  of  eighty-nine  pounds  five  shillings  they  have 
ever  since  answered;  whereby  it  appears  the  standard  of  iS/er///?^ 
was  but  low  in  king  John's  time,  for  eighty  pounds  blanc  was  in 
his  charter  estimated  at  one  hundred  pounds  Sterling:  again  it  was 
high  in  43  H.  3.  viz.  after  the  rate  of  twelve  penny  weight  of  allay 
in  a  pound  of  fine  silver;  for  there,  eighty-four  pounds  Sterling  \s 
rated  to  be  eighty  pounds  blanc;  and  in  Edward  III.  the  standard 
was  lower,  than  twelve  penny  weight  of  allay,  viz.  above  tweniy- 
four  penny-weight  of  allay  and  more  in  a  pound  weight  of  fine 
silver;  but  afterwards  raised  to  eighteen  peimy  weight  of  allay  to- 
wards the  latter  end  of  his  reign,  which  hath  hitherto  continued  as 
the  true  standard  of  Sterling  silver. 

These  curiosities,  tho  they  be  not  much  in  use  at  this  day,  yet  they 
are  fit  to  be  known  for  understanding  the  old  rolls.[l] 

[1]  By  the  2  Will.  3.  c.  34.  sects.  4.  S^  5.  it  is  felony,  with  transportation  or  imprison- 
ment, to  colour,  file,  alter,  or  impair  the  gold  or  silver  coin.     See  Rose,  on  Coin.  19. 

By  the  Act  of  21  April,  1806,  ch.  49.  sect.  3.  if  any  person  shall  fraudulently  and  for 
gain's  sake,  by  any  art,  way,  or  means  whatsoever,  impair,  diminish,  falsity,  scale,  or 
lighten  the  gold  or  silver  coins,  which  have  been,  or  which  shall  hereafter  be  coined  at 
the  mint  of  the  United  States;  or  any  foreign  gold  or  silver  coins,  which  are  by  law  made 
current,  or  are  in  actual  use  and  circulation  as  money  within  the  United  States,  every  per- 
son so  offending  shall  be  deemed  guilty  of  a  high  misdemeanor,  and  shall  be  imprisoned 
not  exceeding  two  years,  and  fined  not  exceeding  two  thousand  dollars.  2  Slats,  at 
Larse.  405. 

By  the  Act  of  3  March,  1825,  ch.  65,  sect.  24.  if  any  of  the  gold  or  silver  coins  which 
shall  be  struck  or  coined  at  the  mint  of  the  United  States,  shall  be  debased  or  made 
worse,  as  to  the  proportion  of  fine  gold  or  fine  silver  therein  contained,  or  shall  be  of  Jess 
weight  or  value  than  the  same  ought  to  be,  pursuant  to  the  several  acts  relative  thereto, 


HISTORIA  PLACITORUM  CORONA.  209 

through  the  default  or  with  the  connivance  of  any  of  the  officers  or  persons  who  shall  be 
employed  at  the  said  mint,  for  the  purpose  of  profit  or  gain,  or  otherwise,  witii  a  fraudu- 
lent intent,  and  if  any  of  the  said  officers  or  persons  shall  embezzle  any  of  the  metals 
which  shall,  at  any  time,  be  committed  to  their  charge  for  the  purpose  of  being  coined, 
or  any  of  tlie  coins  which  shall  be  struck  or  coined  at  the  said  mint,  every  such  officer, 
or  person  who  shall  commit  any,  or  either  of  the  said  offences,  shall  be  deemed  guilty 
of  felony,  and  shall  be  sentenced  to  imprisonment  and  hard  labour  for  a  term  not  less 
than  one  year,  nor  more  than  ten  years,  and  shall  be  fined  in  a  sum  not  exceeding  ten 
thousand  dollars. 

By  sect.  26.  nothihg  in  this  act  contained  shall  be  construed  to  deprive  the  courts  of 
the  individual  States,  of  jurisdiction,  under  the  laws  of  the  several  States,  over  oflences 
made  punishable  by  this  act.    4  id.  122. 


CHAPTER  XIX. 


[210] 


CONCERNING  THE  COUNTERFEITING  OF  THE  KING's  COIN  WHAT  IT  IS, 
WHAT  THE  PENALTY  THEREOF  ANTIENTLY,  AND  WHAT  AT  THIS  DAY. 

Having  taken  this  compass  I  now  descend  to  the  offense  itself,  where- 
in I  shall  consider,  1.  What  is  the  coin  or  money  of  the  i<ing.  2.  What 
a  counterfeiting  tfiereof.  3.  What  the  punishment  before  this  statute. 
4.  ^yhat  the  punishment  since  this  statute. 

I.  What  shall  be  said  the  king's  money. 
.  The  money  of  a  foreign  kingdom  is  not  the  king's  money  within 
this  act,  and  therefore  at  common  law  the.  counterfeiting  thereof  was 
only  punishable  as  a  cheat;  and  now  by  the  statute  of  14  E/iz.  cap.  3. 
it  is  made  misprision  of  treason  to  counterfeit  any  foreign  coin  of  gold 
or  silver,  tho  not  made  current  here  by  proclamation. [1] 

The  money  of  a  foreign  kingdom  made  cnrreiU  by  proclamation, 
tho  it  be  now,  as  to  all  civil  respects,  the  .proper  money  of  this  king- 
dom, yet,  as  to  the  crime  of  treason,  it  was  not  the  king's  money 
within  this  act. 

And  therefore  a  special  statute  was  made,t^/z.  1  Mar.  cap.  6.  that 
if  any  person  falsely  forge  or  counterfeit  any  such  kind  of  coin  of 
gold  or  silver  as  is  not  the  proper  coin  of  this  realm,  and  is  or  shall 
be  current  within  this  realm  by  the  consent  of  the  queen,  her  heirs 
or  successors,  then  such  offense  shall  be  judged  high  treason  [2] 

This  consent  cannot  be  but  under  the  great  seal,  viz.  by  proclama- 
tion and  a  writ  under  the  great  seal  annexed  thereunto,  or  some 
other  sufficient  notification  under  the  great  seal ;  and  it  must  be  of 
money  of  gold  or  silver,  which  I  take  to  be  a  denomination  ex 
majore  parte,  if  it  be  such  a  foreign  coin  as  is,  for  the  most  part,  of 
gold  or  silver. 

But  even  the  counterfeiting  in  copper  or  brass  gilt,  or  in 
tin  or  alchymy,  if  the  exemplar  itself  be  of  gold  or  silver,  is   [211  ~\ 
within  this  act  of  1  Mar.  cap.  6. 

If  the  coin  of /re/ano'[3J  doth  not  substantially  differ  in  the  signa- 

[1]  Misdemeanor,  by  the  43  GfO.  3.  c.  13»,  in  the  cas^  of  copper  or  mixed  metal  coin. 
[2]  Felony  and  transportation  for  seven  years,  by  the  37  Geo.  3.  c.  126. 
[3]  As  to  the  counterfeiting  of  the  coin  oi'  Ireland,  see  1  East,  P.  C,  150. 


211  HISTORIA  PLACITORUM  CORONA. 

tiire  or  impression  from  the  coin  of  England,  the  counterfeiting  of 
that  money  here  in  England  seems  to  be  a  counterfeiting  of  the 
king's  coin  here  in  England ;  but  if  the  stamp  or  impression  bear 
no  such  resemblance,  as  is  easily  discernable,  then  it  is  considerable, 
whether  it  be  a  counterfeiting  of  the  king's  coin  here,  for  Ireland  is 
a  distinct  kingdom  from  England,  tho  part  of  the  dominions  of  the 
crown  of  England. 

Yet  it  seems  that  it  is  treason  within  the  act  of  25  E.  S,  1.  Be- 
cause the  words  of  the  statute  ari3  sa  monoye,  and  not  specially  the 
money  of  England,  and  money  coined  by  the  king's  authority  in 
Ireland  is  sa  monoye,  tho  it  be  not  the  current  money  of  England. 
2.  Because  by  the  express  words  of  the  statute  of  25  Eliz.  the  clip- 
ping of  coin  of  this  realm,  or  any  the  dominions  thereof,  is  enacted 
to  be  treason ;  it  is  not  to  be  supposed  that  the  parliament  would 
make  the  clipping  of  Irish  coin  treason,  unless  the  counterfeiting 
thereof  were  treason ;  and  with  this  the  resolution  of  the  case  of 
mixt  monies  in  Sir  John  Davys'' s  reports  agrees,  viz.  that  the  imbased 
coin  stampt  for  Ireland  is  lawful  money  for  England  within  the 
condition  of  a  bond  for  payment  of  money  in  Ireland.[4'] 

What  shall  we  say  concerning  the  farthings  and  halfpence  of  cop- 
per newly  minted  in  England,  and  proclaimed  as  before  to  be  current 
money,  is  the  counterfeiting  thereof  treason. 

It  is  true,  in  antient  proclamations  for  farthing-tokens  it  was  not 
usual  to  be,  that  it  should  be  current  money,  but  only  that  it  should 
be  used  as  tokens,  and  the  pimishment  of  counterfeiters  was  either 
in  the  star-chamber,  or  by  information  or  indictment,  and  fine  and 
imprisonment  in  the  king's  bench. 

And  yet  it  seems  to  me,  that  this  proclamation  makes  it  not  the 
king's  money  within  this  act  of  25  E.  3.  1.  Because  it  is  so  made 
only  to  a  special  purpose,  namely  in  receipts  and  payments  under 
sixpence,  and  not  otherwise.  2.  Because  here  is  no  dispen- 
[212]  sation  or  non  obstante  of  the  statute  of  25  E.  3.  Again, 
when  by  the  statute  of  25  E.  3.  cap.  13.  it  is  enacted,  that 
the  money  of  gold  or  silver  which  now  runneth  shall  not  be  impaired 
in  weight  or  allay,  we  can  hardly  think  it  ever  intended  that  the 
copper  money  should  be  that  money,  which  should  be  intended 
within  the  act  made  at  tlie  same  parliament  touching  treason;  but 
qiisere  /«/wew.[5] 

[4]  By  the  act  of  3  March,  1825.  ch.  65.  sect.  21.  it  is  enacted,  That  if  any  person  or 
persons  shall  falsely  make,  forge,  or  counterfeit,  or  cause  or  procure  to  be  falsely  made, 
iforged,  or  counterfeited,  or  willingly  aid  or  assist  in  falsely  making,  forging,  or  counter- 
feiting any  coin  in  the  resemblance  or  similitude  of  any  copper  coin  which  has  bpen  or 
hereatler  may  be  coined  at  the  mint  of  the  United  States,  or  shall  pass,  utter,  publish,  or 
sell,  or  attempt  to,  pass,  utter,  publish,  or  sell,  or  bring  into  tlie  United  States  from  any 
foreign  place,  with  intent  to  pass,  ultcr,  publish,  or  sell  as  true,  any  such  false,  forged,  or 
counterftitcd  coin  with  intent  to  detraud  any  body  politic  or  corporate,  or  any  other  per. 
son  or  persons  whatsoever;  every  person  so  oflending  shall  be  deemed  guilty  of  felony, 
and  shall  on  conviction  thereof,  be  punished  by  fine  not  exceeding  one  thousand  dollars, 
and  by  imprisonment  and  confinement  to  hard  labour,  not  exceeding  three  years.  4  Stats, 
at  Large,  121. 

[5]  Sy  the  2  Will.  4.  c.  34.  s,  12.  it  is  made  felony,  with  transportation  or  imprison- 


HISTORIA  PLACITORUM  CORONA.  212 

If  money  be  decried  and  varies  signally  from  the  stamp  and 
impression  in  the  coin  that  is  commonly  allowed,  this  is  not  money 
within  this  act,  for  it  hath  lost  its  denomination  and  legitimation  by 
the  king's  proclamation. (a) 

The  money  of  an  usurper  bearing  his  stamp  and  effigies  and 
inscription,  is  the  king's  money  in  the  time  of  the  succeeding  rightful 
king,  till  it  be  recalled  by  proclamation.  If,  upon  the  evidence 
against  any  counterfeiter  of  the  king's  coin,  tho  it  be  but  of  a  late 
coinage  or  impression,  it  comes  in  question  whether  the  coin  that  is 
counterfeited  were  the  coin  of  this  kingdom,  it  is  not  necessary  to 
produce  a  proclamation  to  prove  its  legitimation  for  these  reasons; 

1.  Because  where  there  were  proclamations  of  coin  they  are  for  the 
most  part  lost:  if  we  should  be  put  to  prove  a  proclamation  for  the 
coins  of  queen  Ma?'7/,qneen  Elizube/h, where  shou\d  we  find  them? 

2.  Because  in  most  kings  times  there  are  variations  of  the  impres- 
sions without  any  proclamation,  or  so  much  as  a  new  indenture 
between  the  king  and  the  master  of  the  mint.  3.  Because  there  are 
very  few  proclamations,  except  that  before-mentioned  in  king  James's 
time,  that  express  any  more  than  the  weight  and  allay,  but  the 
impression  or  effigies  is  rarely,  if  at  all,  expressed,  and  so  such  pro- 
clamation would  import  little  to  ascertain  the  effigies  or  stamps ; 
and  for  the  same  reason  the  indenture  of  the  mint  is  not  absolutely 
necessary,  tho  in  some  cases  it  may  be  useful.  4.  Because  especially 
in  antient  coins  ex  diuttirnitate  temporis  omnia  pncsumuntur  rite 
acta,  if  proclamation  or  indenture  be  necessary,  it  shall  be  presumed 
in  length  of  time,  as  a  licence  of  appropriation  shall  be  presumed  by 
long  continuance,  tho  not  shewn. 

The  question  therefore,  whether  the  coin  that  is  counter- 
feited be  the  coin  of  this  kingdom,  is  a  question  of  fact,  [  213  "] 
which  upon  evidence  of  common  usage,  reputation,  S,'C.  may 
be  found  to  be  Bng/ish  coin,  tho  no  proclamation  of  it  extant. 

But  it  may  be  of  some  use  in  case  of  newness  of  coin  to  produce 
the  indentures,  or  the  officers  of  the  mint,  or  the  stamps  here  used 
for  the  coin,  and  the  like  evidence  of  fact. 

But  as  to  foreign  coin  legitimated  here,  it  seems  necessary  to  shew 
the  proclamation,  together  with  the  proclamation-writ,  or  a  remem- 
brance thereof;  and  this  is  expressly  required  by  the  statutes  of  5  & 
IS  Elizi  for  impairing  or  clipping  foreign  coin. 

(a)  For  this  reason  when  the  broad  pieces  were  cried  down,  and  the  officers  of  the 
revenue  charged  to  take  them  in  payment  for  one  year  after,  it  was  thoujrlit  necessary 
by  a  special  act  of  parhament  6  Geo.  II.  cap.  26.  to  make  the  counterfeiting-  of  them 
during  that  year  treason. 


ment  at  the  discretion  of  the  Court,  4.0  counterfeit,  or  knowingly  to  make  or  mend,  buy 
or  sell,  or  have  in  possession  any  instrument  for  counterfeiting,  or  to  buy,  sell,  receive, 
or  put  off  any  counterleit,  at  a  lower  value  than  its  denomination  imports,  of  the  current 
copper  coin.  And  to  tender,  utter,  or  put  off  any  counterfeit  current  copper  coin  know- 
ing tlie  same  to  be  counterfeit,  or  to  be  possessed  of  three  or  more  pieces  of  counterfeit 
current  copper  coin,  knowing  the  same  to  be  counterfeit,  and  with  intent  to  utter  or  put 
off  the  same,  are  misdemeanors,  and  punishable  with  imprisonment. 
VOL.  I. — 24 


213  HISTORIA  PLACITORUM  CORONA. 

II.  I  come  to  the  second  consideration,  what  is  a  counterfeiting 
witliin  this  law. 

And  before  I  come  to  particulars  it  must  be  remembered,  that  the 
misfeasances  concerning  coin  refer  to  two  sorts  of  persons;  Jirst,  to 
such  as  are  authorized  either  by  their  office,  or  by  charter,  or  by  cus- 
tom to  coin  money;  moneiarii,  moneyers,  minters;  or  secondly, 
those  who  do  counterfeit,  or  take  upon  them  the  stamping  of  coin 
■without  such  authority,  counterfeiters,  clippers,  washers,  Sj-c. 

Touching  the  former  of  these  3  H.  7.  10. (Z>)  Si  ipse,  qui  facit 
monetam  in  Jinglid  authoritate  regia  infra  turrim  London  vel  alibi 
in  Jlnglia  vel  Calicia,  iliam  facit  minus  in  pondere  per  dimidium 
ordinationis  antiqui  ponderis,  &c.  vel  falso  metallo,  est  proditio,  & 
tamen  ipsi,  qui  illam  monetam  utterant  ligeis  domini  regis  infra 
Jingliam  non  sunt  proditores  nee  proditio,  sed  misprisio. 

J3ut  it  is  not  every  mistake  in  weight  or  allay,  that  chargeth  the 
moneyers  with  so  high  a  crime  as  treason,  for  the  master  is  charge- 
able by  his  indentures  to  a  fine  and  ransom  for  some  mistakes  of  this 
nature;  but  it  must  be  a  wilful  gross  proditorious  doing  it,  for  the 
indictment  runs  froditori^y  and  so  it  must  be  proved,  for  it  is  difficult 
for  the  best  artist  to  make  every  piece  of  the  precise 
[  214  ]  weight. 

Touching   others   that  either  counterfeit  or  imbase  the 
coin. 

First,  there  must  be  an  actual  counterfeiting,  for  a  cornpassing, 
conspiracy  or  attempt  to  counterfeit  is  not  treason  within  this  statute 
without  an  actual  counterfeiting. 

But  if  many  conspire  to  counterfeit,  or  counsel  or  abet  it,  and  one 
of  them  doth  the  fact  upon  that  counselling  or  conspiracy,  it  is  treason 
in  all,  and  they  may  be  all  indicted  for  counterfeiting  generally  within 
this  statute,  for  in  such  case  in  treason  all  are  principals.[6j 

{h)  pi.  3. 


[6]  But  since  the  late  Act  of  Parliament,  only  the  party  who  actually  counterfeits 
would  be  the  principal  felon,  and  the  otliers  accessories  before  the  fact.    Archb.CP.Ald. 

"  Wliile  1  declare  that  this  doctrine  contradicts  every  idea  I  had  ever  entertained  on 
the  subject  of  indictments,  (since  it  admits  tliat  one  case  may  be  stated,  and  a  very  dif- 
ferent case  may  be  proved,)  I  will  acknowledge  that  it  is  countenanced  by  the  aulliorities 
adduced  in  its  support.  To  counsel -or  advise  a  treasonable  assemblage,  and  to  he  one 
of  that  assemblage,  are  certainly  distinct  acts,  and  therefore  ought  not  to  be  charged  as 
the  same  act.  Tlie  great  objection  to  this  mode  of  proceeding  is,  that  the  proof  essen- 
tially varies  from  the  charge  in  the  character  and  essence  of  the  offence,  and  in  the  tes- 
timony by  which  the  accused  is  to  defend  himself.  These  dicta  of  Lord  ifaZ?,  therefore, 
seem  to  be  repugnant  to  the  declarations  we  find  every  where  that  an  overt  act  must  be 
laid,  and  must  be  proved.  No  case  is  cited  by  Hale  in  support  of  them,  and  I  am 
strongly  inclined  to  the  opinion,  that  had  the  public  received  his  corrected,  instead  of  his 
original  manuscript,  they  would,  if  not  expunged,  have  been  restrained  in  their  appli- 
cation to  cases  of  a  particular  description.  Laid  down  generally,  and  applied  univer- 
sally to  all  cases  of  treason,  they  are  repugnant  to  the  principles  for  which  Hale 
contends,  for  which  all  the  elementary  writers  contend,  and  from  which  courts  have  in 
no  case,  eitiier  directly  reported  or  referred  to  in  the  books,  ever  departed.  These  prin- 
ciples are,  that  the  indictment  must  give  notice  of  the  offence;  that  the  accused  is  only 
bound  to  answer  the  particular  charge  which  the  indictment  contains,  and  that  the  overt 


HISTORIA  PLACITORUM  CORONiE.  214 

How  far  a  receiver  is  a  principal,  videbimus  infra  Co.  Pla.  Cor. 
13S.  Bjjer  296. 

If  t/2.  counterfeits,  and  by  agreement  before  that  counterfeiting  B. 
is  to  take  off  and  vent  tiie  counterfeit  money,  B.  is  an  aider  and 
abetter  to  such  counterfeiting,  and  consequently  a  principal  traitor 
within  this  law  ;  but  if  B.  knowing  that  ^.  hath  counterfeited  money, 
put  off  this  false  money  for  him  after  the  fact,  without  any  such  agree- 
ment precedent  to  the  counterfeiting,  he  seems  to  be  all  one  with  a 
receiver  of  him,  because  he  maintains  him. [7] 

U  ,/9.  counterfeit  money,  and  B.  knowing  the  money  to  be  coun- 
terfeit vent  the  same  for  his  own  benefit,  B.  is  neither  guilty  of  trea- 
son nor  misprision  of  treason,  but  it  is  only  a  cheat  and.  misdemeanor 
in  him  punishable  by  fine  and  imprisonment. 

But  if  B.  know  that  ^.  counterfeited  it,  and  doth  neither  receive, 
maintain,  or  abet  him,  but  conceals  his  knowledge,  this  is  misprision 
of  treason ;  and  with  this  difference  the  book  of  3  H.  7.  above-cited 
is  to  be  understood,  and  so  it  was  ruled  upon  debate  at  the  sessions 
at  Newgate  Car.  2.  ex  libro  Bridgman.{c) 

Jl.  fashions  stamps  for  the  counterfeiting  of  money,  but  he  is  dis- 
covered and  apprehended  before  he  hath  actually  counterfeited  it ; 
this  is  no  treason  within  this  statute, (of)  for  tho  he  hath  counterfeited 
the  stamps,  yet  he  hath  not  counterfeited  the  money  of  England.\p\ 
r  </?.  counterfeits  the  king's  money,  but  never  vents  it;  this 
is  a  counterfeiting,  and  treason  within  this  statute,  and  so  it  f  215  l 
hath  been  ruled  Co.  P.  C.  p.  16. [9] 

t,'?.  counterfeits  the  coin  of  this  kingdom  or  any  foreign  coin  of 
silver  or  gold  of  any  foreign  kingdom,  and  this  counterfeiting  is  in 
another  metal,  as  tin,  lead,  alchymy,  copper  gilt  or  silvered  over,  yet 
the  former  is  treason  within  the  statute  of  25  E.  3.  and  the  latter 
within  the  statute  of  1  Mar.  If  there  be  a  lawful  coin  of  this  king- 
dom, and  ^.  doth  counterfeit  it  in  a  considerable  measure,  but  yet 
with  some  small  variation  in  the  inscription,  effigies,  or  arms,  to  the 
intent  thereby  to  evade  the  statute,  yet  this  is  a  counterfeiting  of  the 

(c)  Aus.  16  Car.  2.  in  the  case  of  Richard  Oliver,  Kel.  33. 

{d)  1  Rich.  3.  1.  but  it  is  treason  by  the  statutes  of  8  ^  9  T^'.  3.  cap.  25.  and  7  Ann. 
cap.  25. 

act  laid,  is  that  particular  charge."  Per  Marshall,  C.  J.,  2  Burr's  Tr.  432.  See  post.  228. 
1  East,  P.  C.  127. 

[7]  The  offender  would  now  be  an  accessary  after  the  fact,  and  as  such,  by  sect.  18 
of  the  2  Will.  4.  subject  to  imprisonment  for  two  years;  though  the  proper  course  would 
be  to  proceed  against  such  an  ofFeuder  for  the  substantive  offence  of  uttering.  Rose,  on 
Coin,  6. 

[8]  By  Sect.  10,  of  2  Will.  4.  c.  34,  making,  mending,  or  having  possession  of  any 
coining  tools,  is  felony,  with  transportation.     See  the  cases  in  Arch.  C.  P.  481. 

Having  tools  for  coining  in  possession,  with  intent  to  use  them,  held  to  be  a  misde- 
meanor at  common  law.     1  East.  P.  C.  172. 

[9]  It  was  no  offence  at  common  law,  to  have  possession  of  counterfeit  coin  with  intent 
to  utter  it.  R.  v.  Stewart.  Russ  Sf  Ry.  288.  R.  v.  Heath,  id.  184.  but  to  procure  it  with 
that  intent  was  a  misdemeanor.  R.  v.  Fuller,  id.  308. 


215  HISTORIA  PLACITORUM  CORONA. 

king's  money,  and  that  intent  doth  unquestionably  appear,  if  he  vent 
it  as  true:[10]  vide  siipra  de  privalo  signetto.  16  Jac.{f) 

The  clipping,  washing,  or  impairing,  <§*c.  of  foreign  coin  made  cur- 
rent by  proclamation  most  certainly  was  not  treason  by  the  statute 
of  25  E.  3.  but  was  made  treason  de  novo  by  the  statute  of  5  <§•  18 
E/iz. 

But  whether  the  clipping,  washing,  or  impairing  the  proper  coin 
of  this  realm  for  lucre  or  gain  were  treasons  within  this  statute  of 
25  E.  3.  or  not,  is  a  question  that  deserves  consideration,  which,  tho 
it  be  now  settled  by  those  statutes  to  be  treason,  yet  it  is  of  moment 
to  be  known;  if  it  were  and  continues  treason  by  the  act  of  25  E.  3. 
then  the  judgment  is  only  to  be  drawn  and  hanged ;  if  it  be  a  new- 
made  treason,  then  by  my  lord  Cokeys  opinion  the  judgment  must  be 
to  be  hanged,  beheaded,  and  quartered,  as  in  treason  for  compassing 
the  king's  death.     Co.  P.  C.  p.  17. 

I  will  therefore  give  the  history  of  this  business  of  wasfung,  clip- 
ping, <§'c.  ab  origiyie,  from  the  time  of  the  statute  of  25  E.  3.  for  the 
history  of  former  times  at  common  law  will  be  given  in  the  next 
section. 

It  appears  by  the  record  of  M.  31.  E.  3.  coram  rege  rot.  18,  55. 

Bucks,  cited  by  Co.  P.  C.p.  17.  within  six  years  after  the  statute  of 

25  E.  3.  that  for  counterfeiting  and  resection  of  the  king's 

[  21 6  ~\  coin  tlie  abbot  of  Mussenden  was  adjudged  to  be  drawn  and 

hanged,  but  not  quartered. 

By  the  statute  of  3  H.  5.  cap.  6.  clipping,  washing,  and  filing  of 
the  money  of  the  land  is  declared  to  be  treason,  and  the  offenders  to 
be  traitors,  and  shall  incur  the  pain  of  treason;  this  was  made  to  settle 
the  doubt,  and  not  purely  as  a  new  law. 

The  petition,  upon  whicli  this  act  was  made,  is  more  fnll  than  the 
act,  as  it  is  printed,  Rot.  Pari.  3  H.  5.  part  2.  n.  40.  "Item  pryont 
les  commons,  qe  come  devant  ces  heures  grand  doubt  &  awerestee 
ad  este,  le  quelle  le  tonsure,  loture,  filinge,  &  autre  fauxisme  de  vostre 
monoy  duissent  estre  adjugge  treason  ou  nient,  a  cause  qe  null  men- 
tion ent  est  fait  en  le  declaration  des  articles  de  treason  faits  en  le 
parlement  de  vostre  tresnoble  besaiel  Ian  de  son  raigne  25.  Plese  a 
vostre  royal  majestee  de  ordeiner,  declarer,  &  determiner  en  cest 
present  parlement  par  authority  dicol,  qe  ceux,  qe  tondent,  loient, 
iilent,  ou  ascun  autre  fauxisme  facent  de  vostre  mony,  soient  ad^^ 
jugges  traytors,  &  encurgent  le  pain  de  treason,  si  bien  come  ceux 

( / )  Robinson's  case,  2  Rol.  Rep.  50. 

[10]  In  a  prosecution  for  passing  counterfeit  money,  the  jury  should  be  satisfied  that 
the  resemblance  of  the  forged  to  the  genuine  piece  is  such  as  might  deceive  a  person 
using  ordinary  caution.   U.  S.  v.  Morrow.  4  W.  C.  C.  R.  733.     In  R.  v.  Harris  et  al. 

1  Leach.  165.it  was  held  that  the- coin  counterfeited  did  not  bear  a  sufficient  resem- 
blance to  the  real  coin   to   make    the  offence  complete.     But  the   3d  sect,  of  the  Act  of 

2  Will.  4.  c.  34.  declares  that  the  offence  shall  be  deemed  complete,  although  the  coin 
piade  or  counterfeited  be  not  in  a  fit  state  to  he  uttered,  or  the  counterfeiting  of  it  has 
not  been  finished  or  complete.  See  R.  v.  Wilson,  1  Leach.  285.  R.  v.  Welsh  id.  293. 
R.  V.  Varley.  2  W.  Bl.  682.  1  East,  P.  C.  64. 


HISTORIA  PLACITORUM  CORONA.  216 

qe  apporfent  faux  money  en  Enghterre.  sachant  la  estre  faux,  &  qe 
cest  declaration  si  bien  soy  extende  al  tieis  tonsure,  loture,  &  faux- 
isme  faits  avant  ccs  heures  come  a  faire  en  temps  avener.  Ro.  Quant 
a  le  loture,  tonsure  &  fileigne  soit  il  declare  pur  treason." 

Nota^  A  retrospect  desired,  which  was  not  usual,  unless  the  law 
had  held  it  treason  before. 

By  the  statuteof  4 //.  Leap.  IS.  counterfeiting  or  forging  of  foreign 
coin  current  here  is  enacted  to  be  treason,  which  before  was  neither 
felony  nor  treason. 

By  the  statute  of  1  E.  6.  cup.  12.  it  is  enacted,  that  there  be  no 
other  treason  nor  petty  treason,  but  what  was  ordained  by  the  statute 
of  25  E.  3.  or  by  that  act;  and  after  certain  new  treasons  enacted 
there  is  a  proviso,  that  this  act  extends  not  to  repeal  any  act  of  par- 
liament concerning  the  counterfeiting,  forging,  cHpping,  washing  or 
filing  any  coin  of  this  realm,  or  any  coin  of  other  realms  made  cur- 
rent here,  or  the  bringing  into  the  realm  any  counterfeit  coin. 

This  proviso  was  absolutely  necessary  in  relation  to  the 
treason  in  counterfeiting  foreign  coin  contrary  to  the  statute  [  217]] 
of  4  H.  7.  cop.  18.  because  a  new  treason,  but  whether  ne- 
cessary in  relation  to  clipping  or  impairing  the  coin  of  England 
declared  to  be  treason  by  the  statute  of  3  H.  5.  may  be  doubtful  upon 
what  herein  after  follows,  but  certainly  was  very  fit  and  convenient 
to  avoid  the  question. 

By  the  statute  of  1  il/ar.  cap.  1.  it  is  enacted,  that  no  offense  being 
by  act  of  parliament  or  statute  made  treason,  petit  treason,  or  mis- 
prision of  treason,  by  words,  writing,  or  cyphering,  deeds,  or  other- 
wise howsoever,  shall  be  adjudged  to  be  high  treason,  petit  treason, 
or  misprision  of  treason,  but  only  such  as  be  declared  and  expressed 
to  be  treason,  petit  treason,  or  misprision  of  treason  in  or  by  the  act 
of  parliament  of  the  twenty-fifth  year  of  king  Edward  III.  concern- 
ing treason,  nor  any  pains,  penalty  or  forfeiture  to  ensue  upon  any 
offender  in  treason,  petit  treason,  or  misprision  of  treason,  than  such 
as  are  ordained  by  that  statute;  and  all  offenses  made  felony  or  prae- 
munire since  1  H.  8.  not  being  felony  or  within  the  statutes  of 
praemunire  before,  and  all  articles,  (§'c.  concerning  the  same  are  re- 
pealed. 

And  yet  it  appears  by  the  statute  of  1  <5*  2  Ph.  <§'  M.  cop.  11.  that 
then,  notwithstanding  the  astute  of  1  Mar.  cap.  1.  they  did  take  the 
impairing  as  well  as  forging  or  counterfeiting  the  king's  coin  to  re- 
main treason;  for,  by  that  statute  of  1  <§•  2  P.  <S'  M.  cap.  11.  that 
makes  the  importation  of  foreign  counterfeit  coin  to  be  high  treason, 
it  is  provided,  that  any  that  shall  be  accused  of  the  offenses  contained 
in  the  same  statute,  or  any  other  offense  concerning  the  impairing, 
counterfeiting  or  forging-  of  any  coin  current  within  this  kingdom, 
shall  be  indicted,  arraigned,  tried,  convicted  and  attaint  by  such  like 
evidence,  and  in  such  manner  and  form  as  hath  been  used  in  Ens;- 
land  at  any  time  before  the  first  year  of  the  reign  of  king  Ed- 
leard  VI. 

So  that  it  seems  they  took  impairing  of  any  coin  current  to  be  a 


217  HISTORIA  PLACITORUM  CORONA. 

treason  in  force,  but  on  the  other  side  it  may  be  said,  so  they  took 
also  the  forging  of  any  foreign  coin  current  to  be  treason,  when  as 
yet  the  statute  of  4.  H.  7.  concerning  forging  of  foreign  coin 'made 
current  stood  repealed  by  1  E.  6.  but  it  is  plain  that  no  such 
r  218  ]  consequence  could  be  made,  for  by  the  statute  of  1  Mar. 
sesfi.  2.  cap.  6  forging  of  foreign  coin  made  current  here  is 
enacted  to  be  treason  ;  so  that  as  to  the  point  of  foreign  coin  made 
current  here,  tho  the  statute  of  4  //.  7.  cap.  18.  stood  repealed,  yet 
1  Mar.  cap.  6.  stood  in  force  at  the  time  of  the  making  of  the  statute 
of  1  4'  2  P.  <§'  M.  cap.  11. 

Then  ensues  the  statute  of  5  Eiiz.  cap.  11.  which  reciting  in  ex- 
press words,  that  the  statute  of  3  H.  5.  concerning  clipping,  Sec  is 
repealed  by  1  Mar.  cap.  1.  and  the  mischief  that  happens  thereby, 
enacts,  "That  if,  after  the  first  day  of  Alai/  next,  clipping,  washing, 
rounding,  or  filing  for  wicked  lucre  or  gain's  sake  any  of  the  proper 
monies  or  coins  of  this  realm  or  the  dominions  thereof,  or  the  monies 
or  coins  of  any  other  realm  allowed  and  suffered  to  be  current  within 
this  realm,  or  the  dominions  thereof,  or  that  hereafter  at  any  time 
shall  be  lawful  monies  or  coins  of  this  realm  or  of  the  dominions 
thereof,  or  of  any  other  realm,  and  by  proclamation  allowed  and 
suffered  to  be  current  here  by  the  queen,  her  heirs  or  successors, 
shall  be  taken,  deemed,  and  adjndged  by  virtue  of  this  act  to  be  trea- 
son, and  the  offenders,  their  counsellors,  consenters  and  aiders  shall 
from  and  after  the  first  day  of  3Iai/  be  deeemed  traitors,  and  suffer 
pain  of  death  and  forfeit  their  goods,  and  forfeit  all  their  lands  during 
their  lives  only. 

"  That  all,  that  by  charter  have  lands  or  goods  of  traitors  within 
their  liberties,  shall  have  these:  a  proviso  that  this  act  make  no  cor- 
ruption of  blood  or  loss  of  dower." 

And  the  act  of  18  E/iz.  cap.  1.  declaring  that  the  falsifying,  im- 
pairing, diminishing,  scaling,  or  lightning  of  money  was  not  within 
the  act  of  5  Eliz.  which  ought  to  be  taken  strictly  according  to  the 
words  thereof,  and  the  like  offenses  not  by  any  equity  to  receive  the 
like  punishments  or  pains,  enacts  those  offenses  to  be  treason  almost 
iti  totidem  verbis  with  that  of  5  Eliz.  with  the  like  proviso;  and  note 
this  clause  in  both  statutes,  and  the  offenders  being  lawfully  thereof 
convict  or  attainted  according  to  the  due  order  and  course  of  the 
laws  of  this  realm  shall  suffer  the  pain^  of  death. 

These  acts  do,  in  effect,  declare,  that  this  was  not  treason 
[  219  ]  within  the  statute  of  25  E.  3.  and  that  the  statute  of  1  Mar. 
cap.  1.  repealed  that  declaration  that  was  made  in  3  H.  5. 
and  gives  the  reason,  because  the  law  being  penal  ought  to  be  taken 
and  expounded  strictly  according  to  the  words,  and  the  like  offenses  . 
not  by  any  equity  to  receive  the  like  punishment,  and  therefore  light- 
ning or  scaling  were  not  within  the  act  of  5  Eliz.  and  neither  within 
the  act  of  25  E.  3.  against  counterfeiting  the  coin. 

And  yet  it  is  observable,  that  those  very  judges,  which  were  pre- 
sent at  the  making  of  the  statute  of  5  Eliz.  yet  upon  a  solemn  con- 
sideration in  fVright's  case,  T.  6  Eliz.  Bi/er  230.  did  agree,  that 


HISTORIA  PLACITORUM  CORONiE.  219 

the  judgment  in  treason  pro  tonsurd  monetse  Anglise  is  no  other  but 
to  be  drawn  and  hanged,  and  accordingly  judgment  was  given  in 
that  case  ;  and  upon  search  of  the  precedents  at  Newgale  I  find, 
that  altho  some  judgments  in  case  of  clipping  of  money  are  to  be 
drawn^  hanged,  beheaded  and  quartered ;  yet  the  greater  number 
both  of  former  and  latter  times  have  been  only  to  be  drawn  and 
hanged(g)  according  to  the  judgment  in  6  E/iz. 

And  therefore  my  lord  Coke,  PL  Cor.  p.  17.  tho  he  agree,  that  the 
judgment  for  counterfeiting  the  coin  of  England  is  only  to  be  hanged 
and  drawn,  as  it  was  before  the  statnte  of  25  E.  3.  seems  neverthe- 
less to  be  mistaken,  when  in  the  same  page  he  saith,  that  if  any  be 
attainted  for  diminishing  the  king's  money  upon  the  statutes  made 
in  the  time  of  queen  Mary  or  Queen  Elizabeth,  because  it  is  high 
treason  newly  made,  the  olfender  shall  have  judgment  as  in  the  case 
of  high  treason,  viz.  to  be  drawn,  hanged,  beheaded,  dismembred, 
quartered,  c^-c.  for  the  greater  number  and  better  precedents  run  only 
to  be  drawn  and  hanged :  and  so  it  was  lately  ruled  upon  great  con- 
sideration in  a  case  in  the  king's  bench, (A)  tho  perchance  it  is  not 
error,  whether  the  one  judgment  or  other  be  given. 

Upon  the  whole  matter  therefore  it  seems  to  me,  1.  That 
altho  it  should  be  admitted,  that  clipping  of  the  coin  of  [|  220  1 
England  conXinnedi  treason  notwithstanding  the  statute  of 
1  Mar.  that  yet  it  is,  at  this  day,  treason  merely  by  the  statute  of 
5  Eliz.  and  therefore  every  indictment,  at  this  day,  for  clipping  or 
impairing,  fyc.  must  pursue  the  words  of  the  statutes  of  5  <§•  18  Eliz. 
and  conclude  contra  for  mam  statiiti;  and  this,  not  only  in  the 
case  of  clipping  of  foreign  coin,  which  certainly  was  no  treason  after 
1  Mar.  and  before  5  Eliz.  but  also  in  relation  to  the  coin  of  Eng- 
land; and  the  reason  is,  1.  Because  this  statute  hath  added  a  quali- 
fication to  these  treasons  of  clipping  or  lightning,  viz.  it  must  be  for 
hccre's  sake,  which  must  be  expressly  laid  in  the  indictment,  but 
need  not  have  been  so  laid  by  the  statute  of  3  H.  5,  for  tho,  per- 
chance, it  was  intended,  yet  it  was  not  expressed  in  that  statute, 
neither  needed  it  then  to  have  been  in  the  indictment.  2.  Because 
in  express  words  the  statutes  of  5  4' -18  Eliz.  say,  that  it  shall  be 
treason  by  virtue  of  this  statute,  which  is  not  a  bare  recital  as  in  the 
beginning  of  the  statute,  that  the  statute  of  3  H.  5.  was  repealed  ; 
but  it  is  also  an  express  enacting  clause,  which  is  in  effect  exclusive 
of  any  other  law  to  make  it  treason,  but  this  of  5  or  IS  Eliz.  for 
these  words  are  in  both  the  statutes.  3,  Because  it  extremely  alters 
the  consequences  of  a  judgment  in  treason,  for  here  was  no  loss  of 
dower,  no  loss  of  land  but  during  life,  no  corruption  of  blood,  so  that 
these  statutes  did  perfectly  intend  a  total  new  establishment  and 
qualification  of  this  treason. 

2.  That  altho  this  be  a  new  law,  yet  inasmuch  as  neither  at  com- 
mon law,  nor  after  the  statute  of  25  -E.  3.  the  treasons  or  ofl^enses 

(o')  Morgan's  case,  Cro.  Car.  383. 

(A)  The  case  of  Bellew  and  Norman,  1  Verir  254.  2  Lev.  98.  Raym.  234. 


220  HISTORIA  PLACITORUM  CORONA. 

concerning  money  had  any  greater  judgment  than  such  as  is  given 
in  case  of  petit  treason,  namely  for  the  man  to  be  drawn  and  hanged, 
the  woman  to  be  burnt,  no  higher  or  other  judgment  is  to  be  given 
upon  the  statutes  of  the  5th  or  ISth  Eliz.  and  hence  it  is,  that  in  the 
statute  of  25  E.  3,  though  it  rank  counterfeiting  money  among  high 
treasons,  yet  it  ahers  not  the  judgment  that  was  at  common  law;  nay 
tho  it  be  most  certain,  that  the  statute  of  25  E.  3.  as  to  some  points 
of  bringing  in  foreign  money  be  introductive  of  a  new  law,  yet  inas- 
much as  it  concerns  money,  wherein  the  highest  judgment 
[  221  ]  at  the  time  of  25  E.  3.  was  only  that  of  petit  treason,  it  doth 
not  inhanse  the  judgment  higher;  and  accordingly  it  was 
resolved  upon  great  advice  and  consideration  of  precedents  Car.  2. 
Banco  liegis  in  the  case(z)  for  cWpp'm^  Ens^lish  coin. 

3.  That  upon  any  trial  of  counterfeiting,  clipping,  washing,  <5'C.  the 
coin  of  England  or  foreign  coin  made  current,  there  is  no  necessity 
either  upon  the  trial  or  the  indictment  of  two  witnesses,  required  in 
other  cases  by  the  statutes  of  1  E.  6.  cap.  12.  and  5  E.  6.  cap.  11. 

For  as  to  the  counterfeiting  of  money,  or  so  much  as  was  treason 
for  impairing  money,  by  1  <5'  2  P.  <§•  M.  cap.  11.  it  is  expressly  pro- 
vided, that  no  other  evidence  shall  be  requisite  either  npon  the  indict- 
ment or  trial  than  was  before  the  statute  of  1  E.  6.  and  as  to  clipping 
and  washing,  the  very  statutes  of  5  and  IS  Eliz.  m  express  terms 
require  only  a  conviction  and  attainder  accoy^ding  to  the  order  and 
course  of  the  law;  and  therefore  tho  the  statute  of  5  E.  6.  cap.  11. 
enact,  that  two  witnesses  or  lawful  accusers  shall  be  required  upon 
proceeding  for  any  treason,  that  now  be  or  hereafter  shall  be.  yet 
that  act  is  thus  far  derogated  by  those  two  acts,  that  require  only  an 
indictment,  a  conviction  and  attainder  according  to  the  order  and 
course  of  the  law  generally;  for  tho  it  be  held,  that  the  statute  of 
1  Sf-  2  I\  S,'  M.  cap.  10.  that  enacts,  that  all  trials  of  treason  shall  be 
according  to  the  course  of  the  common  law,  doth  not  take  away  the 
necessity  of  two  witnesses  upon  the  indictment,  because  that  is  a  dis- 
ti.nct  thing  from  the  trial.  14  Eliz.  lord  Lumley^s  case,  Di].  99.  Co. 
P.  C.p.  25.  yet  the  words  [conviction  and  attainder  after  the  order 
and  course  of  the  law)  mentioned  in  the  statutes  of  5  4'  IS  Eliz.  in- 
clude the  indictment  as  well  as  the  trial,  and  therefore  even  without 
the  aid  of  the  statute  of  \  S,^  2  P.  <§'  Al.  cap.  11.  restores  the  whole 
proceeding  according  to  the  order  of  the  common  law  in  case  of  clip- 
ping br  washiijg,  as  the  statute  of  1  <§•  2.  Ph.  Sf  Mar.  doth  in  express 
words  in  case  of  counterfeiting. 

And  note,  upon  the  statutes  of  5  <§•  18  Eliz.  tho  Irish 

r  222  ]  coin  be  not  current  in  England,  when  of  a  baser  allay,  y^t 

it  is  the  king's  coin,  and  clipping  or  washing  in  England 

the  coin  of  Ireland  is  treason  by  those  acts,  for  the  words  are  the 

coin  of  this  realm,  or  dominions  thereof,  which  extends  to  Ireland. 

4.  The  fourth  thing  observable   upon  these  statutes  is,  that  the 
act  of  1  Alar.  cap.  1.  reducing  all  treasons  to  the  standard  of  25  E.^. 

(i)  This  I  take  to  be  the  forecited  case  oi  Bellew  and  Norman,  1  Fen.  254. 


HISTORIA  PLACITORUM  CORONA.  222 

doth  not  only  repeal  treasons,  that  were  newly  enacted  de  novo,  but 
such  acts  concerning  treason  as  were  only  declarative,  as  this  of 
3  ^.  5.  among  olhers.[l  1] 

[11]  The  Constitution  (^Art.  1.  Sect.  8.  c.  6.)  authorizes  Congress  to  provide  for  the 
punishment  of  counterreitinor  the  securities  and  current  coin;  in  pursuance  of  which, 
tlie  Acts  of  21  April,  1806,  ch.  49,  and  3  March,  1825,  ch.  65,  were  passed.  By  the 
20  sect,  of  the  latter,  it  is  enacted,  That  if  any  person  or  persons  shall  falsely  make, 
forge,  or  counterfeit,  or  cause  or  procure  to  be  falsely  made,  forged,  or  counterfeited,  or 
willingly  aid  or  assist  in  falsely  making,  forging,  or  counterfeiting  any  coin,  in  the  re- 
semblance or  similitude  of  the  gold  or  silver  coin  which  has  been,  or  hereafler  may  be, 
coined  at  the  mint  of  the  United  States;  or  in  the  resemblance  or  similitude  of  any 
foreign  gold  or  silver  coin  which  by  law  now  is,  or  hereafter  may  be  made  current  in 
the  Unittd  Slates;  or  shall  pass,  utter,  publish,  or  sell,  or  attempt  to  pass,  utter,  publisji, 
or  sell,  or  bring  into  the  United  Slates  from  any  foreign  place  with  intent  to  pass,  utter, 
publish,  or  sell  as  true,  any  such  false,  forged,  or  counterlitited  coin,  knowing  the  same  to 
be  false,  forged,  or  counterfeited,  with  intent  to  defi-aud  any  body  politic  or  corporate,  or 
any  other  person  or  persons  whatsoever;  any  person  so  offending  shall  be  deemed  guilty 
of  felony;  and  shall,  on  conviction  thereof,  be  punished  by  fine,  not  exceeding  five  thou- 
sand dollars,  and  by  imprisonment  and  confinement  to  hard  labour,  not  exceeding  ten 
years,  according  to  the  aggravation  of  the  offence. 

Sect.  26.  That  nothmg  in  this  Act  contained  shall  be  construed  to  deprive  the  courts 
of  the  i-ndividual  States  of  jurisdiction,  under  the  laws  of  the  several  States,  over  offences 
made  punishable  by  this  Act. 

The  State  courts  having,  by  permission  of  this  Act,  concurrent  jurisdiction  of  these 
offences,  their  legislatures  have  severally  passed  laws  on  the  subject.  But  they  have 
hitherto  generally  fallen  under  the  cognizance  of  the  federal  courts. 

It  has  been  held,  that  a  person  who  takes  base  pieces  of  coin  which  are  brought  to 
hira  ready  made,  having  tlie  impression  and  appearance  of  real  coin,  though  of  different 
colour,  and  brightens  them  so  as  to  give  them  the  resemblance  of  real  coin,  and  render 
them  fit  for  circulation,  is  guilty  of  counterfeiting.  He  completes  the  offence,  and  sub- 
jects  thereby,  to  the  penalties  of  the  law,  not  only  himself,  but  all  who  acted  a  part,  or 
were  present  assisting  in  the  transaction.  Rasnick  v.  Cammonw.  2  Virg.  Cas.  356. 
•  Under  the  Conneclicut  statute,  aiding  in  the  act  of  counterfeiting,  is  within  both  the 
letter  and  reason  of  the  statute,  as  much  as  assisting  in  making  the  implements.  State 
V.  Stetson,  Kerby,  52.  "         - 

An  indictment  does  not  lie  for  forging  a  Spanish  head  pistareen,  as  it  is  not  a  coin  of 
Spain  made  current  by  law  in  the  United  Stales.     U.  S.  v.  Gardiner,  10  Peters,  618. 

In  an  indictment  for  uttering  counterfeit  coins,  it  is  sufficient  to  describe  them  as 
"  made  and  counterfeited"  to  the  likeness  and  similitude  of  the  good,  true,  and  correct 
money  and  silver  coins  curreniiy  passing  in  the  State,  and  commonly  called  Spanish 
dollars.     Fight  v.  State,  7  Ham.  {Part  1)  180.  ^ 

Proof  that  the  defendant  had  implements  for  coining  in  his  own  house,  does  not  go  to 
establish  the  fact  of  the  defendant's  knowledge  that  the  dollar,  for  passing  which  he  was 
indicted,  was  counterfeit.     Slate  v.  Odel,  Const.  Rep.  758. 

On  an  indictment  for  passing  a  counterfeit  dollar,  proof  of  the  admission  of  the  defend- 
ant, that  he  had  made  and  passed  other  counterfeit  dollars,  is  inadmissible.     Jd. 

Having  a  crucible  in  possession  is  not  having  a  tool  or  instrument  for  counterfeiting 
within  sect.  31.  of  the  Vermont  Act  against  liigh  crimes  and  misdemeanors.  Allegation 
in  the  indictment  that  the  coins  intended  to  be  counterfeited  were  "current  silver  coins 
of  this  State  and  of  the  United  Slates,"  does  not  satisfy  the  words  of  the  Act,  "  which 
shall  be  made  current  by  the  laws  of  this,  or  the  United  States,^^  and  are  bad  on  demur- 
rer.    Slate  v.  Bowman,  6  Verm.  594. 

On  an  information  for  passing  a  counterfeit  coin,  knowing  it  to  be  counterfeit,  tlie 
prosecutor  offered  evidence  of  the  prisoner's  having  in  his  possession  at  the  same  time, 
an  engraved  paper,  having  the  appearance  of  a  bank  note,  but  not  purportmg  to'be  signed 
or. countersigned,  for  the  purpose  of  showing  the  knowledge  charged  in  the  declaration. 
It  was  held  inadmissible.     Stalker  v.  State,  9  Cowen,  341. 

In  an  indictment  for  passing  a  counterfeit  coin,  the  possession  of  instruments  for  coin-^ 
ing  mny  be  given  in  evidence  to  prove  the  guilty  scienter  of  the  defendant.  State  v.  An. 
tonio.  Const.  Rep.  116.  '        '■ 

Under  the  Act  of  Massachusetts  of  1804,  c.  121.  sect,  6.  against  having  in  possessioa 
VOL.  1.-^25 


222  HISTORTA  PLACITORUM  CORONA. 

IV.  The  fourth  thing  that  I  propounded  to  consider,  is  tlie  history 
of  the  punishment  of  counterfeiters,  4'C.  of  coin  before  the  statute  of 
25  E.  3.  and  how  it  hath  stood  since. 

In  this  kingdom  and  indeed  in  all  the  kingdoms  the  counterfeiting 
of  the  king's  money  hath  been  in  all  Rges  crimen  lassas  ?7t(/Jesl(ilis,{k) 
tho  in  many  of  the  old  books(/)  it  comes  under  the  general  title  of 
c?;imen  falsi. 

But  the  punishment  in  its  kind  and  degree  hath  ahnong  w.?  very 
much  varied  both  in  relation  to  the  nwnetarii  or  moneyers,  that 
were  intrusted  with  the  making  of  coin,  and  others,  that  took  upon 
them  to  counterfeit  the  king's  coin  :  among  the  laws  of  king  Athel- 
Stan,  I.  19.  set  down  by  Brompton,  p.  S43.  Una  moneta  sit  in  toto 
regni  imperio,  &  nullus  monetet  extra  portum,  si  monitarius  reus 
fuerit,  amputeter  ei  manus,  &  ponatur  supra  monetae  fabricam,  ac- 
cord Hoveden  sub  anno  1137.  &  M.  Paris  sub  anno  \\25.{m) 

In  the  time  of  Henry  I.  it  is  written  by  Simon  Dunelmensis, 
p.  214:  Monetarii  totius  Jinglise  priiicipales  deprehensi  adulterinos, 
scilicet  non  puros  ex  argento,  .fecisse  denarios,  jussu  regis  simul 
JVintonx  congregati  omnes  una  die  amputatis  dextris  evir- 
[223]  antur;  Et  ibidem  p.  231.  Qui  falsos  denarios  fecerit, 
oculos  et  inferiores  partes  corporis  perdet;  a/it/ Knighton, 
p.  2377.  H.  1.  statuit,  ut  fures  suspenderentur,  falsarii  oculos  & 
genitalia  amitterent,  &  ut  denarii  &  oboli  essent  rotundi.(;2) 

Knighton,  p.  2463.  "  Edwurdiis  primus  tenuit  parhamentum 
apud  London,  fecit  mutari  monetam  regni,  quas  illo  tempore  fuit 
viliter  retonsa  &  abbreviata,  unde  populus  regni  graviter  conquere- 
batur,  &  rex  veritatem  inquireus,  &  comperiens  trecentos  &  plures  de 
illo  delicto  &  felonia  publice  convicios,  quorum  quidam  fuerunt  sus- 
pensi,  quidam  distracti  &  suspensi  secundum  delicti  quantitatem  et 
qualitatem,&  ordinavit,quod  deinde  5'/er///j^w.y  &  quadrans  deinceps 
essent  rotundi:"  so  that  clipping  was  then  held  treason,  or  at  least 
felony. 

After  the  statute  of  25  E.  3.  the  punishnient  hath  been  constantly 

{k)  By  the  old  Roman  law,  Qui  nummos  aureos,  argenteos  adulteraverit,  laverit,  con- 
flaveiit,  raserit,  corruj)erit,  vitiaverit,  vnltuve  principaiu  signatam  monetam,  praeter 
adulterinam,  reprobaveiit,  lionestior  in  insulam  deporlandus,  iiumilioraut  in  metallum 
damnandus,  aut  in  crucem  tollendus;  and  ichatever  degree  he  was  q/",  ejus  bona  fisco 
vindicaiitur:  see  Jul.  Panli  sententias  receptas,  Lib.  V.  tit.  12.  §.  12.  and  Lib.  V.  tit.  25. 
§.  1.  Afterwards  bij  a  law  of  Cotistnnline,  Cudendse  pccuiiioe  obnoxii  majesta(is  crimen 
semmittunt,  &  quicunque  solidoruin  adulter  poterit  reperiri,  flammaruin  exustionibus 
maticipetar,  Lib,  IX.  Cjd.  til.  24.  /.  2.  See  also  Wilkin''s  Ligcs  Anglo.  Sax.  p.  59,  in 
notis. 

(I)  Bracton,  Lib.  III.  de  corona,  cap,  3.  §  1,  Glanvil.  Lib.  XIV.  cap.  7,  Flet.  Lib.  I. 
cap.  22. 

(w)  Leges]  Ethelstani,  I.  14.  Wilk,  Leg.  Anglo-Sax.  p.  59.  See  also  Leges  Edgari, 
I.  8.  Coiisiilutiones  Etfulredi  in  Jine.     Le^es  Cnuti,  I.  8. 

(n)    Wilk.  Leg.  Heu,l.  p.  304.  sab  annollOS.  p.  308.  sub  anno  1125. 


ten  similar  pieces  of  counterfeit  gold  or  silver  coin,  it  is  sufficient  if  the  offender  has 
in  iiis  possession  ten  pieces  of  either  kind  of  coin,  tliougli  not  all  of  tlie  saiiie  denomi- 
nation. Brown  v.  Comnionw.  8  Mass.  59.  71. 


HISTORIA  PLACITORUM  CORONA.  223 

to  be  drawn  and  hanged,  because  that  was  the  proper  judgment  of 
it,  before  the  making  of  the  statate.[12] 

And  altho  the  course  hath  been  in  treasons  concerning  the  king's 
person  not  to  allow  the  privilege  of  clergy,  yet  before  25  E.  3.  cap. 
4.  pro  cle.ro  it  had  been  thought  and  practised  iti  antient  time  to 
allow  the  privilege  of  clergy  upon  an  indictment  for  counterfeiting 
money. (o) 

But  after  that  statute  clergy  was  not  allowable  in  the  case  of 
counterfeiting  money,  19  H.  6.  47  b.  Stamf.  Pla.  Cor.  114  b.  yet 
whereas  in  cases  of  treason  regularly  he  that  stands  mute  shall  be 
thereby  convicted  15  E.  A.  33  a.  Stamf.  Pla.  Cor.  150  a.  because 
not  within  the  statute  of  IVestmin.  1.  cup.  12. (p)  yet  we  have 
some  historical  instances,  that  upon  indictment  of  counterfeiting  coin 
the  prisoner  standing  mute  was  put  to  pain  fort  ^-  dure.  Knighton 
tempore  R.  2.  sub  anno  13S9.  before  Belknap,  Skipwith, 
and  others  apud  Lincoln  septern  falsarii  monetx  convicti,  f  224  ] 
gui  simul  tractifuerunt  4'  siispensi,  ^-  quidam  vicarius  de 
Wintringham  obmutescens  adjudicatus  est  ad  poenam  mutorum ; 
but  at  this  day  the  law  is  taken  otherwise,  and  that  standing  mute 
amounts  to  a  conviction  of  the  crime. [13] 

And  in  short  at  this  day  in  all  cases  of  treason  for  counterfeiting 
the  coin  of  this  kingdom,  or  of  any  the  dominions  thereof,  or  of 
foreign  coin  made  current  by  proclamation,  or  for  washing,  clipping, 
sealing,  impairing,  or  diminishing  the  same,  tho  most  of  these  are 

(o)  For  clergy  was  antiently  denied  only  in  such  treasons,  as  were  immediately 
against  the  king's  person,  and  therefore  Co.  P.  C  p.  16.  clergy  was  allowed  in  the 
case  of  counterfeiting  the  great  seal.  See  also  the  case  of  Burdon,  (P.  18.  E.  2.  B.  R. 
Rot.  25.  Rex.  South'ton)  who  was  admitted  to  his  clergy  on  being  convicted  of  felony 
and  sedition  in  counterfeiting  the  great  seal ;  but  in  Tliorpt^s  case,  {T.21  E.S.  Rot.  23. 
Rex.)  who  was  convicted  of  sedition  in  levying  war,  it  was  adjudged,  that  he  could  not 
be  admitted  to  his  clergy:  nota  la  diversite;  but  the  26  H.  8.  cap,  13.  takes  away  clergy 
in  all  cases  of  treason:  vide  antea  in  nolis,  p.  185  <^*  186. 

{p)  2  Co.  Inst.  177. 


[12]  The  punishments  under  the  Stat.  2  XV.  4.  c.  34.  are  various  :  transportation,  im- 
prisonment, and  fine.  When  imprisonment,  the  ID  Sect.  leaves  it  to  the  discretion  of  the 
court  to  sentence  the  prisoner  to  hard  labour,  or  solitary  confinement.  But  the  7  W.  4. 
^1  P"ic<.  c.  9.  s.  5.  restrain  such  solitary  confinement  to  a  period  not  exceeding  one 
month  at  a  time,  or  three  months  in  the  space  of  one  year.  See  Sects.  20  c^T  21  of  the 
Act  of  Congress  of  3  March,  1825,  ch.  65,  and  the  3  Sect,  of  the  Act  of  21  April,  1806, 
cA.49. 

[13]  Before  the  7.  &  8.  Geo.  4.  c.  28.  s.  2,  standing  mute  in  cases  of  high  treason 
amounted  to  a  conviction  ;  but  by  that  statute,  if  any  person  being'  arraigned,  &c.,  for 
treason,  &c.,  shall  stand  mute  of  malice,  or  will  not  answer  directly  to  the  indictment, 
it  shall  be  lawful  for  the  court,  if  it  shall  thiiik  fit,  to  order  a  plea  of  not  guilty  to  be 
entered,  and  the  plea  so  entered  shall  have  the  same  effect  as  if  the  party  liimself  had 
pleaded  it. 

By  the  30</i  Sect,  of  the  Act  of  Congress  of  30th  April,  1790,  it  is   enacted.  That  if 
any  person  or  persons  be  indicted  of  treason  against  the  United  States,  and  shall  stand 
mute  or  re/"use  to  plead,  &c.,  the  court  shall,  notwithstanding,  proceed  to  the  trial  of  the  • 
person  or  persons  so  standing  mute,  &c.,  as  if  he  or  they  had  pleaded  not  guilty,  and 
render  judgment  thereon  accordingly. 

As  to  the  case  of  a  person  deaf  and  dumb,  see  72.  v.  Pritchard,  1  C.  Sf  P.  303.  Com.  v. 
Hill,  14  Mass.  297. 


224  HISTORIA  PLACITORUM  CORONA. 

made  treason  by  new  acts  of  parlianaent,  as  1  Mar.  cap.  6.  5  Eliz.  cap. 
11.  18  Eliz.  cap.  1.  yet  the  judgment  is  only  for  a  man  to  be  drawn 
and  hanged,  for  a  woman  to  be  burned,  and  so  (as  I  said)  it  was 
solemnly  resolved. 

And  the  reason  is,  because  the  most  of  these  be  new  treasons 
made  by  act  of  parliament,  yet  they  are  all  in  their  matter  concern- 
ing money,  wherein  the  judgment  at  common  law  was,  as  in  case  of 
petit  treason :  and  that  judgment  was  not  altered  by  25  E.  3.  iii 
case  of  counterfeiting,  which  is  the  highest  otfense  concerning  money, 
and  therefore  is  not  to  be  exceeded  by  the  intent  of  those  statutes, 
which  brought  lesser  otfenses  concerning  money,  as  clipping,  into 
the  same  rank  of  offense  with  counterfeiting,  for  they  are  all  olfenses 
in  pari  materia,  and  so  shall  have  a  parity  of  judgment. 

See  the  Stat.  12  Geo.  3.  ch.-90.  concerning  standing  mute  and  refusing  to  plead. 
-4  "Blacks.  Com.  ch.  vi.  p.  89. 


[  225  ]  CHAPTER  XX. 

CONCERNING  TREASON  IN  BRINGING  IN  FALSE  MONEY. 

The  next  point  of  treason  is,  if  any  man  bring  in  false  money  into 
this  realm  counterfeit  to  the  money  of  Ens;land,  as  the  money 
called  Liishborough.,  or  other  like  to  the  said  money  of  England, 
knowing  the  money  to  be  false,  to  merchandize  or  niake  payment  in 
deceit  of  our  lord  the  king  and  of  his  people. [1] 

Touching  this  point  of  treason  these  things  are  observable. 

I.  That  the  money  in  this  case  must  be  imported  from  a  foreign 
nation,  for  here,  it  is  not  the  counterfeiting,  that  is  the  treason,  but 
the  importing:  and  yet  it  seems  by  the  general  words  of  the  statute 
of  35  H.  8.  cap.  2.  the  counterfeiting  itself,  tho  out  of  the  king- 
dom, may  be  tried  in  the  king's  bench,  or  before  special  commission- 
ers, as  well  as  any  other  treason. 

But  at  common  law  the  counterfeiting  beyond  the  sea  seems  not  to 
have  been  such  a  treason  as  could  be  tried  here,  as  treason  in  adhe- 
ring to  the  king's  enemies  might  have  been,  and  therefore  the  im- 
porting was  made  treason  by  this  act.[2] 

Altho  Ireland  be  within  the  statute  of  35  H.  8.  cap.  2.  for  trial  of 
treason  in  compassing  the  king's  death  or  levying  of  war,  as  is  be- 
fore observed,  and  therefore  as  to  that  purpose  out  of  the  realm  of 
England,  yet  it  hath  been  held  upon  the  obscure  book  of  3  H.  7.  10. 

[1]  By  the  6.  sect,  of  the  2  W.  4.  c.  34.  it  is  felony,  punishable  with  transportation  or 
imprisonment,  at  the  discretion  of  the  court,  to  import  into  the  United  Kingdom  from  be- 
yond seas  any  counterfeit  coin  resembling  any  of  the  king's  gold  or  silver  coin,  knowing 
the  same  to  be  counterfeit.  It  would  seem  to  be  no  offence  within  this  Sect,  to  import 
from  the  king's  dominions  beyond  the  seas,  (1  Hawk.  c.  17.  s.  87.  1  East,  P.  C.  175.) 
because  the  counterfeiting  there  is  punishable  by  the  laws  of  England.    Arch.  C.  P.  417. 

[2j  See  1  East,  P.  C.  175. 


HISTORIA  PLACITORUM  CORONiE.  225 

that  an  importation  of  counterfeit  coin  from  thence  into  England 
is  not  treason  here  within  that  statute,  principally  because  the  coun- 
terfeiting itself  is  punishable  by  the  statute  of  35  E.  3.  which  is  of 
force  in  Ireland.  Co.  P.  C.p.  18.  And  the  like  reason  holds 
for  the  Isle  of  Man.  Before  this  statute  there  was  some  [  226  ] 
difficulty  what  this  crime  should  be. 

In  the  time  of  king  Edward  I.  there  were  three  great  inconve- 
niences touching  coin  imported  from  foreign  parts,  sometimes  they 
imported  true  coin  oi  England,  but  such  as  was  clipped,  sometimes 
they  imported  counterfeit  coin  like  the  coin  oi  Engknid,  but  of  a 
base  allay;  and  most  times  they  imported  foreign  coin,  which  yet 
passed  between  merchants,  and  filled  the  kingdom  with  bad  money 
to  the  detriment  of  trade  and  the  king's  coinage.  [3] 

And  to  remedy  these  inconveniences  were  those  three  ordinances 
made,  called  Stalntuni  de  moneld  magnum,  de  monetd  peirvuni,^ 
*drticuli  de  monetu;  by  which,  searches  were  ordained  of  all  coin 
imported,  that  if  any  dipt  money  or  any  foreign  money,  other  thari 
of  England,  Ireland,  or  Scotland,  were  taken,  it  should  be  pierced 
and  redelivered  to  the  owner,  if  it  were  false  it  should  be  detained, 
and  the  bodies  of  such  as  had  false  or  dipt  money  to  be  attached, (a) 
and  if  suspicious,  detained  till  he  produce  his  warrant;  that  money 
be  received  by  weight;  and  by  the  second,  viz.  Stututiim  de  moneld 
parvurn,  that  if  any  merchant  brought  in  dipt  or  counterfeit  money, 
for  the  first  offense  he  should  lose  the  money,  for  the  second  he  should 
lose  his  iijoney  and  goods,  and  for  the  third  de  corporibiis  siiis  8f  de 
omnibus  bonis  4'  catallis  suis  nobis  totaliter  incurratiir;  that  if 
they  were  not  merchants,  they  should  pierce  the  dipt  and  counterfeit 
money  and  send  it  to  the  exchange,  otherwise  in  whose  hands  soever 
such  money  should  be  found,  it  should  be  forfeited  to  the  king:  and 
by  articuli  de  monetd  the  several  faulty  coins,  foreign  and  others, 
that  had  obtained  in  the  kingdom  by  common  use  are  described  and 
decried. 

By  the  statute  of  9  E.  3.  cap.  2.  Item,  "That  no  false  money  or 
counterfeit  Sterling  be  brought  into  this  realm  or  elsewhere  within 
our  power  upon  forfeiture  of  such  money." 

By  an  act  or  rather  an  advice.  Rot.  Pari.  17  E.  3.  n.  15. 
qe  nul  soit  si  hardy  de  porter  fausse  &  malveis  monoie  en   [227] 
roialme  sur  peyn  de  forfeiture  de  vie  &  membre. 

Pot.  Pari.  20  E.  3.  n.  15.  A  complaint  of  importation  of  false 
money,  especially  the  false  money  called  Lnsheburnes,  praying  de 
punir  ceux,  que  sont  trovez  culpablez  d'lapport,  ou  de  le  resceit  de 
eux  sachant  le  fauxisme,  par  judgment  come  faux  monyers. 

Ro'.  Quant  a  cest  point  de  ceux,  qe  apportent  la  faux  mony  deins 
le  realme,  &  qe  le  usent  per  voy  de  merchander  ent  sachaiant,  le  roy 
vo€t,  quils  eieut  judgment  de  vie  &  de  membre,  come  faux  monyers, 

(«r)  See  an  ordinance  to  this  purpose  in  tiie  reign  of  king  John  Wilk.  Leg.  Anglo-Sax. 
[3]  See  tlie  Act  of  Congress  of  3  March,  1825,  ch.  65.  sect.  20,  ante,  p.  222. 


227  HISTORIA  PLACITORUM  CORONA. 

solonc  les  leys  &  cnstomes  de  realme  ;  but  this  was  never  drawn  np 
into  an  act:  yet  Rot.  Pari.  21  E.  3.  n.  19.  the  commons  desire  the 
penalty  may  stand  according  as  was  ordained  in  the  last  parHament, 
and  that  it  extend  as  well  to  the  time  past  as  to  come^^i'qe  mil  cfiar- 
tres  de  pardon  soient  grant  de  dit  fanxime  8f  treason:  they  were 
answered,  that  the  justices  should  be  assigned  to  enquire  of  the  time 
past  and  to  come  after  this  act,  and  to  do  right,  and  that  pardons  be 
not  granted  cy  legerment. 

By  which  it  appears,  that  it  was  never  settled  to  be  treason  till  20 
E.  3.  and  even  from  that  time,tliere  was  but  a  faint  proceeding  ugon 
that  offense. 

But  this  statute  of  25  E.  3.  was  that,  which  madeihe  final  sissttle^ 
ment  in  this  point. 

But  this  makes  only  the  apporters  themselves,  their  aiders,  abet- 
tors, and  assistants,  traitors,  not  those,  that  receive  it  at  the  second 
hand;  and  this  stands  with  reason  and  is  consonant  to  the  statute  of 
moneta  before  cited,  which  rendered  the  merchants  offense  punish- 
able at  the  third  time  with  death,  but  subjected  others  only  to  loss  of 
the  money,  if  not  pierced  and  carried  to  the  exchange. 

II.  That  it  be  counterfeit  after  the  similitude  of  the  money  of 
Englaii d,  oihexw'xse  it  is  not  treason  :  the  bringing  in  of  money  coun- 
terfeit after  the  similitude  of  foreign  coin  made  current  here  by  pro- 
clamation is  not  treason  within  this  act ;  but  by  the  statute  of  1  &  2 
Ph.  <§•  Mar.  cap.  11.  it  is  enacted,  "That  if  any  person  after  Jari.  20 
next  shall  bring  from  the  parts  beyond  the  sea  into  this 
[|  228  3  realm  or  into  any  of  the  dominions  of  the  same  any  false 
and  counterfeit  coin  of  money  being  current  within  this 
realm  as  aforesaid,  viz.  by  the  sufferance  and  consent  of  the  king 
and  queen,)  {which  extends  to  the  successors)  knowing  the  sAme 
coin  or  money  to  be  false  and  counterfeit,  to  the  intent  to  utter  or 
make  payment  of  the  same,  within  this  realm,  or  any  of  the  domi- 
nions of  the  same,  by  merchandizing  or  otherwise,  that  every  such 
offender,  their  counsellors,  procurers,  aiders,  and  abetters  shall  be 
deemed  traitors,  and  forfeit  as  in  case  of  high  treason," 

And  by  the  statute  of  14  Eliz.  cap.  3.  forging  of  foreign  coin  not 
current  by  proclamation,  as  well  without  the  realm  as  within,  is 
made  misprision  of  treason;  but  that  act  extends  only  to  the  coun- 
terfeiting, whether  within  the  realm  or  without,  but  not  to  the  bare 
importing  ;  the  instance  that  is  here  given  is  of  Lnshboroiighs,  which 
were  a  base  counterfeit  coin  after  the  similitude  of  English  coin. 

Other  monies  both  before  and  after  this  statute  there  were,  some 
counterfeit,  some  dipt,  some  of  baser  metal,  some  foreign,  which  had 
their  several  courses  and  periods  in  this  realm  :  Pollards  and  Cror 
kards,  that  obtained  some  time  in  Edward  I.  but  were  after  decried 
by  proclamation  24  E.  1.  vide  Dy.  81.  Other  several  base  coins  in 
the  same  king's  time  mentioned  in  the  ordinance  of  Jirticuli  de 
moneta,  black  money,  which  had  been  formerly  current  here,  recalled 
by  the- statute  of  9  E.  3.  de  moneta,  cap.  4.  Suskins,  Dodkins,  and 
Gaily  hall-pence  recalled  by  the  statute  of  11  H.  A.  cap.  5.  3  H.  5. 


HISTORIA  PLACITORUM  CORONA.  228 

cap.  1.  Scotch  money  recalled  by  the  statute  of  3  H.  5.  cap.  1. 
Biankes  recalled  by  the  statute  of  2  //.  6.  cap.  9.  and  several  penal- 
.ties,  some  general,  some  of  felony  applied  to  them  ;  but  these  were 
for  the  most  part  out  of  this  statute,  and  obtained  here  by  conni- 
vance, till  recalled. [4] 

III.  The  next  qualification  of  this  offense  is,  that  the  bringer  in, 
must  know  it. [5] 

IV.  The  next  qualification  is,  that  he  must  bring  it  to  merchan- 
dize or  make  payment  thereof  in  deceit  of  the  king  and  his  people.  ^ 

Counterfeiting  of  the  king's  coin  without  uttering  of  it  is 
treason;  clipping,  washing,  &c.  by  the  statutes  of  5  and  IS  [  229  ~\ 
Eliz.  is  treason,  but  it  must  be  for  gain  or  profit,  and  here 
the  importing  is  not  treason,  unless  it  be  to  merchandize  or  utter  it. 

And  hereupon  my  lord  Coke(a)  concludes,  that  he  must  merchan- 
dize therewith,  or  make  payment  thereof;  it  is  a  favourable  exposL- 
jtion,  but  the  statute  is  not,  that  if  he  import  and  merchandize,  hut 
piir  merc/tandizer  <§'  payment  /aire,  if  it  were  to  that  intent,  the 
statute  makes  it  treason. 

And  by  the  statute  of  1  &  2  Ph.  <§•  Mar.  cap.  11.  touching  impor- 
tation of  coin  counterfeit  of  foreign  money,  it  must  be  to  the  intent 
to  utter  and  make  payment  of  the  same  ;  and  tho  the  best  trial  of  an 
intention  is  by  the  act  intended  when  it  is  done,  yet  the  intent  in  this 
case  may  be  tried  and  found  by  circumstances  of  fact,  by  words,  let- 
ter^, and  a  thousand  evidences  besides  the  bare  doing  of  the  fact. 

As  in  case  of  those  many  acts,  that  prohibit  lading  of  wool,  gold, 
silver,  &c.  with  an  intent  to  transport  the  same,  whereby  some  are 
made  felony,  &c.  the  intent  shall  be  tried  in  those  cases  (being  joined 
with  an  act)  by  circumstances,  that  evidence  the  intent  of  that  action, 
for  tho  bare  intentions  cannot  receive  any  trial,  yet  intentions  joined 
with  ah  overt-act,  as  here,  importation,  may  be  tried  and  discovered 
by  circumstances.  •  * 

So  that  it  seems  the  very  importing  of  counterfeit  money  pur  mer- 
chandizer,  &;c.  to  the  intent  to  merchandize  or  make  payment  there- 
with, tho  no  such  merchandize  or  payment  be  aciually  made,  is 
treason  by  this  statute,  if  the  party  importing  know  it  to  be  such,  and 
that  as  well  his  intent  as  his  knowledge  lies  in  averment  and  proof. 

And  thus  far  concerning  treasons  i'elating  to  money. 

(o)  Co.  P.  C.p.  18. 

[4]  By  the  37  Geo.  3.  c.  126.  s.  3.  to  bring  into  the  realm  any  counterfeit  coin  resem- 
bling any  gold  or  silver  coin  of  any  foreign  country,  to  pass  as  such  foreign  coin,  know- 
ing the  same  to  be  counterfeit,  to  the  intent  to  utter  the  same  in  any  of  the  king's- 
dominions,  is  made  felony,  with  trans^portution.  By  the  4  sect,  tendering  in  payment 
such  coin  is  made,  lor  the  first  offence,  imprisonment  for  six  months — second  offence, 
two  years — Uiird  offence,  felony  without  benefit  of  clergy.  To  have  in  custody  a  greater 
number  than  five  pieces  of  counterfeit  foreign  coin,  makes  the  party  liable  to  a  penalty  of 
five  pounds,  by  the  6  sect. 
"  [5]  1  East,  P.  C.  175.  Rose,  on  Coin.  24.  Archb.  C.  P.  477. 


230      ^         HISTORIA  PLACITORUM  CORONA. 

CHAPTER  XXI. 

CONCERNING    HIGH    TREASON    IN    KILLING    THE    CHANCELLOR,  ETC. 

I  COME  shortly  to  treat  of  the  last  kind  of  high  treason  declared  by 
this  act. 

Si  home  tnast  chancellor,  treasurer,  ou  justice  nostre  seigneur  le 
roy  del  un  banck  ou  del  autre,  justice  in  eyre,  ou  de  assises,  &  touts 
autre  justices  assignes  de  oyer  &  terminer,  esteant  en  lour  place  fesant 
lour  office. 

I.  This  statute  extends  only  to  the  actual  killing  of  some  of  these 
officers,  and  therefore  a  conspiring  to  kill  any  of  these  without  actual 
killing  of  any  of  them  is  not  treason  ;  but  if  any  conspire  to  do  the 
act,  and  one  of  the  conspirators  actually  do  it,  this  seems  to  be- treason 
in  them  all,  that  are  abettors  or  counsellors  to  do  the  act,  as  is  before 
instanced  in  levying  of  war,  and  therefore  there  is  a  particular  act 
made  3  H.  7.  cap.  14,  that  make  the  conspiring  the  death  of  a  privy 
counsellor  to  be  felony.(a) 

If  a  man  only  strike  or  wound  one  of  these  officers,  tho  in  the  exe- 
cution of  his  office,  this  is  a  great  misprision,  for  which  in  some  cases 
the  offender  shall  lose  his  hand, (A)  as  was  once  done  in  the  case  of 
my  lord  chief  justice  Richardson  sitting  as  justice  oi  oyer  and  termi- 
ner, but  it  is  not  treason  within  this  act. 

II.  This  statute  extends  to  no  other  officers  but  those 
[231  ]  above-named,  and  therefore  not  to  the  lord  steward,  consta- 
ble, marshal,  admiral, or  lord  of  parliament,  iho  in  the  exercise 
of  their  offices;  it  may  be  murder,  but  not  treason.    Co.  P.  C.  p.  18. 

A  justice  of  peace,  tho  there  be  in  the  end  of  his  commission  of  the 
peace,  nee  non  ad diversa  felunias,  malefacta  audiend'  Sf  terminand' 
is  not  a  justice  of  oyer  and  terminer  within  this  act,  for  the  justice? 
of  operand  termin  r  nve  intended  such,  as  have  their  commission  ac^ 
audiend'  l<c  terminand'  4'C.  as  the  principal  designation  of  their  office; 
and  thus  it  is  in  divers  statutes  also,  that  speak  generally  of  justices 
oi  oyer  ^\\d^  terminer,  {^c) 

But  a  justice  of  peace  may  be  also  a  justice  of  oyer  and  terminer 
by  another  commission,  as  many  times  they  are,  and  then  they  are 

(a)  But  this  act  extends  only  to  such  offenders,  as  are  the  king-'s  sworn  servants,  whose 
names  are  entered  in  the  cheque-roll  of  the  king's  liousehold,  and  who  is  under  tiie  state 
of  a  lord;  and  according  to  lord  Goke's  npiirinn  the  conspiracy  must  be  plotted  to  ho  done 
within  tlie  king's  household.  Co.  H.  C.  p.  39.  by  this  statute  the  otiender  was  not  deprived 
of  the  benefit  of  the  clergy;  but  by  9  Ann.  cap.  16,  on  occasion  of  Robert  Harhy,  Esq. 
(afterwards  earl  of  Oxford)  being  stabbed  by  Anlhmy' Guiscard,  who  was  tiicB  under 
examination  before  a  committee  of  privy  council,  it  was  enacted,  "'I'hat  whoever  should 
unlawfully  attempt  to  kill,  or  should  unlawfully  assault,  strike  or  wound  a  ])rivy  coun- 
sellor in  the  execution  of  his  office,  shall  suffer  death  as  a  felon  without  benefit  of  clergy," 

{h)  3  Co  Inst.  140. 

(c)  9  Co.  118.  6,  Cro.  £/w.  87,  697.       . 


HISTORIA  PLACITORUM  CORONA.  231 

within  this  statute,  when  they  are  sitting  by  virtue  of  that  commis- 
sion. 

The  lord  keeper,  when  there  is  a  lord  chancellor  also,  as  there  may 
be  both  at  the  same  time, seems  not  to  be  within  this  law;  but  if  there 
be  no  lord  chancellor,  then  the  lord  keeper  is  within  this  act,  for  by 
the  statute  of  5  Eliz.  cap.  18.  their  office  is  declared  to  be  the  same 
to  all  intents  and  purposes,  as  if  the  lord  keeper  were  lord  chancellor. 

But  the  commissioners  of  the  custody  of  the  seal(c^)  or  for  the 
treasury  are  not  lord  chancellor  or  lord  treasurer  within  this  act,  and 
therefore  at  such  times  as  the  treasury  hath  been  in  commission  those 
commissioners  have  not  the  same  power  as  the  lord  treasurer,  as  in 
cases  of  writs  of  error  by  the  statute  of  31  E.  3  cap.  12. (e)  in  the 
exchequer  before  the  lord  chancellor  and  treasurer,  and  so  for  the 
setting  of  the  prices  of  wines  by  the  statute  of  7  E.  6.(/)  neither  do 
they  sit  as  lord  treasurer  in  the  exchequer-chamber,  as  judges  of 
equity. 

It  extends  not  to  the  chancellor  and  under  treasurer  of  the 
exchequer,  nor  to  the  chancellor  of  the  county  palatine  of  [232] 
Lancaster,  nor  to  the  lord  privy  seal,  for  these  are  special 
officers  and  of  a  lower  rank,  than  the  lord  chancellor  or  treasurer. 

III.  The  MeVfi^  qualification  of  this  treason  is,  that  it  must  be  este- . 
ants  671  lour  places,  fesant  lour  offices ;  wherever  the  seal  is  open, 
whether  in  the  court  of  chancery  or  in  the  chancellor's  house,  the 
chancellor  or  keeper  there  sealing  writs  is  seants  en  son  place,  fesant 
S071  office. 

And  the  same  law  seems  to  be,  if  he  be  hearing  of  causes  in  his 
chamber,  for  tho  antienily  the  hearing  of  causes  upon  English  bills 
was  rare,  yet  use  hath  sufficiently  obtained  to  give  it  the  style  of 
fesant  son  office. 

Qusere,  touching  the  lord  treasurer's  dispatching  business  in  his 
house,  whether  this  be  seant  in  son  place,  but  sitting  in  the  court  of 
exchequer,  or  exchequer-chamber,  or  in  the  star-chamber,  when  it 
stood,  had  been  seant  in  son  place,  S,'C. 

.  The  place  for  the  justices  of  the  several  courts  are  the  courts  them- 
selves, where  they  usually  or  by  adjournment  sit  for  the  dispatch  of 
tlie  business  of  their  courts. 

And  so  much  shall  suffice  for  this  treason  also. 

1  Hawk.  p.  C.  41.  4  Black.  Com.  c.  vi.  p.  84. 

(<Z)  But  it  should  seem,  that  now  they  are  within  the  act,  since  by  1  W.  Sf  M.  sess.  1. 
cc/^j  21.  their  office  is  declared  to  be  the  same,  and  they  to  have  the  same  jurisdiction  and 
privileges,  as  lord  chancellor. 

(e)  See  also  31  Eliz.  cap.  1. 

(/)  This  power  is  given  by  37.  H.  8.  cap.  23.  which  statute  was  revived  by  the  5  Sf 
6  Ed.  6.  cap.  17,  but  there  is  nothingr  of  it  in  the  7  E.  6, 

VOL.  I. — 26 


233  HISTORIA  PLACITORUM  CORONA. 

CHAPTER  XXII. 

CONCERNING    PRINCIPALS    AND    ACCESSARIES    IN    TREASON. 

Before  I  leave  the  discourse  concerning  high  treason  it  is  necessary 
to  consider,  whether  or  how  all  are  principals  in  high  treason. 

In  cases  of  felony  there  are  two  sorts  of  principals,  viz.  principals 
in  the  first  degree,  that  do  the  fact,  be  it  in  murder  or  any  other 
felony,  and  principals  in  the  second  degree,  that  are  present  aiding 
and  abetting  the  felony. 

And  regularly  in  felony  there  are  two  sorts  of  accessaries,  1.  Ac- 
cessaries before  the  fact,  which  are  not  present,  but  yet  counselling, 
connnanding,  or  abetting  the  felony,  but  in  manslaughter  no  such 
accessaries  can  be  before:  and  2.  Accessaries  after,  such  as  knowing 
a  felony  to  be  done  by  such  a  man  do  y^t  receive  or  maintain  him, 
unless  it  be  a  wife  receiving  her  husband  ;(<-/)  of  this  hereafter  in  its 
due  place. 

Now  in  treason  thus  far  it  is  agreed  of  all  hands,  1.  That  there 
are  no  accessaries  a  parte  ante.,  but  ail  such  as  counsel,  conspire, 
aid,  or  abet  the  committing  of  any  treason,  whether  present  or 
absent,  are  all  principals.  2.  It  is  likewise  agreed  of  all  hands, 
that  in  all  treasons,  except  that  which  concerns  counterfeiting  the 
great  or  privy  seal,  or  money,  whosoever  knowingly  receives,  main- 
tains, or  comforts  a  traitor,  is  a  principal  in  high  treason.  Co.  P.  C, 
16, 138,  and  so  it  is  there  cited  to  be  resolved  in  the  case  of  Jlbingtouj 
who  received  Garnet,  that  was  one  of  the  conspirators  in  the  powder 
treason ;  that  which  hath  occasioned  the  doubt  hath  been  the  reso- 
lution in  Conyer^s  case,  Dy.  296.  who  was  indicted,  that  proditorie 
receptdsset,  Sj-c.  Fairfax,  salens  ipsuryi  diversas  pecias  moyietse  ad 
shnilitudineni  monetse  Angiiae  vocat  shillings  de  /also  me- 
[]234]  iallo  fabricdsse ;  upon  this  he  and  others  were  discharged, 
because  it  was  misprision  of  treason  only,  and  not  treason; 
but  this  opinion  is  contradicted  by  my  lord  Coke,Pla.  Cor.  p  138. 
and  yet  it  is  said  by  the  same  author,  Paschse  9  Jac.  12  Rep.  81.  the 
receiver  of  a  counterfeiter  of  the  seal  or  money  is  no  traitor. 

We  will  see  therefore  in  what  cases  an  act  ex  post  facto  will  be, 
treason  in  relation  to  the  aid  of  him,  that  committeth  this  or  any 
other  treason. 

A  man  is  imprisoned  for  treason,  the  goaler  voluntarily  suffers  him 
to  escape,  this  is  treason  in  the  goaler.     Stamf.  PI.  Co.  32. 

If  a  person  be  arrested  for  treason,  he  that  rescues  him  is  guilty  of 
treason.  [1] 

(a)  Vide  supra,  p.  47. 

[1]  By  the  23  Sect,  of  tlie  Act  of  April  30,  1790,  it  is  enacted,  That  if  anv  person  or 
persons  shall  by  force  set  at  liberty  or  rescue  any  person  wiio  shall  be  founa  guilty  of 
treason,  murder,  or  any  other  capital  crime,  or  rescue  any  person  convicted  of  any  of 


HISTORIA  PLACITORUM  CORONiE.  234 

And  so  if  a  man  be  imprisoned  for  treason,  and  another  prisoner 
or  any  other  person  breaks  the  prison,  and  lets  out  the  party  im- 
prisoned for  treason,  this  is  treason  in  the  party  that  breaks  the 
prison.  1  H.  6.  5  Stamf.  PL  Cor.  32.  nay,  if  a  stranger  breaks  the 
prison  and  lets  out  one  there  imprisoned  for  treason  ;  this  is  held 
treason,  tho  he  that  breaks  the  prison  knew  not  that  any  there  was 
imprisoned  for  treason;  so  resolved  by  ten  judges,  P.  16.  Car. 
Crake  583.  Bens  fed's  case;  but  my  lord  Coke  holds  that  he  must 
be  knowing  it.  Co.  Mag.  Cart,  super  statutum  de  frangentibus 
prisonam.{b)[2'] 

Rot.  Pari.  2  H.  6.  n.  18.  in  schediila.  Mortimer  was  committf^ 
to  the  Tower  oi  London  for  suspicion  of  treason  ;  and  23  Feb.  2  M. 
6.  was  indicted,  quod  per  covinam,  confoederationem  4*  assensum 
AVilielmi  King,  S;c.  pro  diversis  denariorum  summis  eidem  Wil- 
lielmo  K\n%  per  praefatum  Johannem  Mort'unev  p?'omissis,  idem  Jo- 
hannes txirrim  prxdicf  /also  S,'  proditorik  f regit :  the  indictment 
was  removed  into  parliament,  and  John  Mortimer  likewise  brought 
into  the  parliament:  the  commons  desired  the  duke  of  Gloucester 
(then  commissioned  to  hold  the  parliament)  that  the  indictment  might 
be  affirmed,  and  that  John  Mortimer  de  prxdictis  proditionibus  4' 
feloniis  convincatur :  thereupon  the  duke  and  lords  at  the  request 
of  the  commons  affirm  the  indictment  by  act  of  parliament, 
&  quod  prgedictus  Johannes  Mortimer  de  proditionibns  &  [  235  ] 
feloniis  prsedictis  convincatur,  &  quod  trahatur  per  medium 
civitatis,  &  super  furcas  de  Tyburne  suspendatur,  &  ad  terram  pro- 
jiciatur,  &  caput  ejus  amputetur,  &  interiora  sua  comburantur,  & 
corpus  ejus  in  qnatuor  partes  dividatur,  &  caput  ejus  ponatur  super 
portam  pontis  London,  &c.  &  quod  bona  &  catalla,  terras  &  tcne- 
menta  sua,  tam  in  dominico,  quam  in  reversione,  domino  regi  foris- 
faciat. 

So  that  it  seems,  tho  the  statute  of  25  E.  3.  speaks  not  of  these 
offenses,  yet  they  are  in  a  manner  incidents,  and  virtually  included 
within  the  original  ofiense,  and  therefore  these  cases  of  voluntary 

(6)  2  Ce.  Inst.  590. 


the  said  crimes,  going  to  execution  or  during  execution,  every  person  so  offending  and 
being  thereof  convicted,  shall  suffer  death.  And  if  any  person  shall  by  force  set  at 
liberty  or  rescue  any  person  who  before  conviction  shall  stand  committed  for  any  of  the 
capital  offences  aforesaid ;  or  if  any  person  or  persons  shall  by  force  set  at  liberty  or 
rescue  any  person  committed  for,  or  convicted  of  any  other  offence  against  the  United 
Slates,  every  person  so  offending  shall,  on  conviction,  be  fined  not  exceeding  five  hundred 
dollars,  and  imprisoned  not  exceeding  one  year. 

[2]  It  is  true  it  was  resolved  in  BensteacVs  case,  cited  here  bj'  the  learned  author,  (Sir 
M.  Hale,)  and  at  p.  141,  but  I  think  not  with  entire  approbation  of  the  rule,  that  the 
party  breaking  prison  would  have  been  guilty  of  treason  though  he  had  not  known  that 
traitors  were  there.  I  am  by  no  means  satisfied  with  this  opinion.  For  the  single  au- 
thority upon  which  this  point  is  said  by  Hale  to  have  been  so  ruled  doth  by  no  means 
warrant  it.  The  book  expressly  stateth  it,  that  the  party  did  know  that  traitors  were 
there.  And  Brooke,  who  abridgeth  the  case,  is  express  to  the  same  purpose,  "  sciant  que 
traitors  fuerent  en  ceo.''''  And  Coke,  citing  the  same  case,  layeth  a  great  stress  on  this 
circumstance,  that  the  party  knew  that  traitors  were  there,  and  conducted  them  out  of 
prison.   Fost.  344. 


235  HISTORIA  PLACITORUM  CORONiE. 

permission  to  escape,  rescue,  breach  of  prison,  translate  the  original 
offense  upon  him,  that  commits  it  by  the  common  law;  and  these 
would  be  treasons  as  well  in  the  case  of  counterfeiting  of  coin,  as 
other  treasons. 

But  herein  these  things  are  observable,  1.  This  judgment  in  Mo7'- 
timer^s  case  is  not  at  all  now  in  force,  nor  binding,  for  the  statute  of 
1  Marix  repeals  not  only  enacted  treasons,  but  declared  treasons, 
that  were  not  within  25  E.  3.  and  2.  That  therefore  at  this  day,  if 
one  be  committed  for  suspicion  of  treason,  and  another  break  goal  to 
let  him  out,  yet  unless  the  party  imprisoned  were  really  a  traitor, 
ifiis  is  no  treason  at  this  day.  3.  But  if  he  were  really  a  traitor,  then 
^leaking  of  the  prison  to  enlarge  him  is  treason,  and  a  treason  of  a 
greater  guilt,  than  a  knowing  receiver,  and  then  it  is  treason  by  vir- 
tue of  the  common  law,  for  it  is  a  kind  of  incident;  the  like  of  a 
receiver  of  a  traitor,  or  a  goaler  that  sutlers  him  voluntarily  to  escape, 
those  are  incident  treasons  by  the  common  law,  and  virtually  inclu- 
ded in  the  statute  of  25  E.  3.  as  well  as  a  receiver  of  a  traitor  know- 
ingly. 

The  differences  therefore  seem  to  be  these,  which  state  and  recon- 
cile the  whole  matter. 

First  as  for  new  treasons.  If  an  act  of  parliament  enact  a  new 
treason,  and  that  the  offender,  his  counsellors,  abetters,  and  aiders 
thereunto  shall  suffer  as  traitors,  this  doth  not  make  receivers  or  com- 
forters after  the  fact  guilty  of  treason,  for  expressum  facit  cessare  ta- 
citurn; such  a  clause  we  shall  find  in  the  statute  23  Eliz. 
\_  236  ~\  cap.  2.  for  a  new  felony(c)  5  Eliz.  cap,  1.  in  a  case  of  a  pr'ss- 
miinire.{d) 

If  an  offense  be  made  treason  in  the  offender,  hi»  procurers,  coun- 
sellors, abetters,  consenters,  (without  the  word  thereAcnto)  yet  it  seems 
to  me  for  the  same  reason  it  doth  not  make  the  knowing  receivers 
traitors,  unless  the  words  receivers  or  comforters  be  also  inserted: 
for  the  former  words  import  an  offense  preceding  or  concomitant  to' 
the  act  of  treason,  but-  the  latter  words  receivers  and  comforters  are 
after  the  offense,  and  so  of  another  nature  :  and  this  difference  appears 
expressly  by  the  statute  of  13  Eliz.  cap.  2.  where  abetters, procurers, 
and  counsellors  are  made  guilty  of  high  treason;  but  receivers  and 
comfortersie)  after  the  fact  are  only  within  the  statute  o{ prsemunire ; 
the  like  in  27  Eliz.  cap.  2.  where  the  coming  of  a  priest,  S)^c.  is  trea- 
son, but  his  receiver,  aider,  or  comforter  is  felony:  so  5  &  6  £^.  6. 
cap.  11.  and  1  Eliz.  cap.  5.  the  offenders,  their  counsellors,  abetters 
and  procurers,  and  all  and  every  their  aiders  and  comforters  know- 
ing the  same  extend  to  knowing  receivers. 

The  word  {aid)  is  of  somewhat  a  more  doubtful  extent,  yet  we 
shall  find  in  those. statutes  and  some  others  the  word  aid  to  be  applied 
to  an  aiding  after  the  offense,  and  not  in  it  or  to  it;  but  it  seems  to 

(c)  The  words  of  this  statute  are,  aiders,  procurers,  and  abetters. 

(d)  The  words  of  this  statute  are  more  extensive,  viz,  abetters,  procurers,  counsellors, 
aiders,  assistants,  and  comforters. 

(e)  The  words  in  this  place  of  tlie  statute  are,  aider Sy  comforters,  or  maintainers. 


HISTORIA  PLACITORUM  CORONiE.  035 

me,  that  when  it  is  joined  only  with  those  that  import  a  consent 
to  the  offense,  (as  procurers,  counsellors,  aiders,  abetters,  or  coun- 
sellors, consenters  and  aiders)  as  in  the  statute  of  5  Eliz.  cap.  11. 
for  clipping,  IS  Eliz.  cap.  1.  for  impairing  1  Mar.  sess.  2  cap.  6.  for 
counterfeiting  foreign  coin,  it  must  be  construed  of  those  that  are 
aiders  in  the  offense,  and  not  bare  receivers  of  the  person. 

But  in  all  new  treasons,  those  that  rescue  him  from  prison,  or  suffer 
him  voluntarily  to  escape  being  lawfully  committed  to  his  custody, 
tho  these  are  not  expressly  contained  in  that  new  act  of  treason,  yet 
they  are  traitors  by  a  necessary  construction  of  law  upon  the  act 
itself;  but  if  the  act,  be  general,  making  a  man  a  traitor  for 
such  an  act  without  mentioning  in  what  degree  his  aiders,  f  237  1 
or  abetters,  comforters,  or  receivers  shall  be,  it  seems  proba- 
ble, that  the  receiver,  knowing  it,  is  thereby  virtually  made  also  a 
traitor;  this,  I  say,  seems  probable,  but  most  certainly  procurers,  con- 
senters, and  aiders  to  the  fact  are  thereby  traitors,  tho  not  specially 
so  enacted;  this  is  agreed  in  Conyer'^s  case,  By.  296.  Co.  P.  C.  16 
fy  138. 

Secondly,  As  touching  treasons  within  the  act  of  25  E.  3. 

The  procuring,  counselling,  consenting,  or  abetting  such  treasons, 
tho  not  specially  expressed  in  that  statute, is  treason  within  that  statute. 
Co.  P.  C.  cap.  64.  p.  138.  and  so  is  the  receiving  of  a  traitor,  or  a 
gaoler's  voluntary  permitting  him  to  escape,  if  he  were  in  truth  a 
traitor. 

In  case  of  the  knowingly  receiving  of  a  person  guilty  of  counter- 
feiting of  coin,  or  of  the  great  seal,  there  is  diversity  of  opinion,  M. 
12  (§•  13  Eliz.  By.  296.  and  my  lord  Coke  himself  in  his  12  Rep. 
p.  81.  9  Jac.  says,  that  it  is  not  treason,  and  yet  Pla. Cor.  cap.  64. p.  138. 
he  holds  it  treason,  tho  this  latter  opinion  is  the  more  probable,  the 
former  is  more  merciful. 

But  in  all  other  treasons  against  the  king  within  the  statute  of  25  E, 
3.  the  receiver  of  a  traitor  knowingly  makes  the  receiver  a  traitor; 
this  was  Jihin.f^ton^s  case  for  receiving  Garret  guilty  of  the  powder 
treason,  Co.  P.  C.  p.  138. 

Only  this  difference  is  to  be  observed,  he,  that  being  committed 
for  treason  breaks  prison,  may  be  indicted  for  breaking  of  prison,  be- 
fore he  be  convict  of  the  principal  offense,  for  which  he  was  com- 
mitted, but  not  of  treason,  but  it  will  be  only  felony  by  the  statute 
de  fran^entibus  prisonam,  for  this  statute  de  frangenlibus prisonam 
makes  it  not  treason  ;  and  if  it  did,  yet  the  statute  of  25  E.  3.  makes 
it  no  treason,  because  not  within  the  same  statute,  and  consequently 
1  Mar.  cap.  1.  exempts  it  from  being  treason;  but  he,  that  rescueth 
a  person  imprisoned  for  treason,  or  sutlers  him  voluntarily  to  escape, 
stiall  not  be  arraigned  for  that  ofiense,  till  the  principal  offender  be 
convict  of  that  offense:  for  if  he  be  acquitted  of  the  principal  ofiense, 
the  gaoler,  that  suffered  the  escape,  and  he  that  made  the 
rescue  shall  be  discharged ;  and  the  like  in  felony.  Coke  Mag.  [  238  ] 
Car.  super  stat.  defrangentibus  prisonarn,  p.  592.  and  tlie 
reason  is,  because  tho  rescuing  a  person  charged  with  treason,  or  suf- 


238  HISTORIA  PLACITORUM  CORONA. 

fering  him  wilfully  to  escape  be  a  great  misdemeanor,  yet  it  is  not 
treason,  unless  in  truth  and  reality  lie  were  a  traitor,  for  a  man  may 
be  arrested  or  imprisoned  under  a  charge  of  treason,  and  yet  be  no 
traitor. 

And  iho  the  receiver  of  a  traitor,  knowing  it,, be  a  principal  traitor, 
and  shall  not  be  said  an  accessary,  yet  thus  much  he  partakes  of  an 
accessary,  1.  That  his  indictment  must  be  special  of  the  receipt,  and 
not  generally,  that  he  did  the  thing,  which  may  be  otherwise  in  case 
of  one,  that  is  a  procurer,  counsellor,  or  consenter;[3]  thus  it  was 
done  in  Co n]i/e?''s  ca.se,  Di/.  296.  2.  That  if  he  be  indicted  by  a  seve- 
ral indictment,  he  shall  not  be  tried  till  the  principal  be  convicted, (/) 
upon  the  reason  of  the  goaler  and  rescuer  before  given,  for  the  prin- 
cipal may  be  acquitted,  and  then  he  is  discharged  of  the  crime  of  re- 
ceipt of  him.  3.  If  he  be  indicted  specially  of  the  receipt  in  the  same 
indictment  with  the  principal  offender,  as  he  may  be,  yet  the  jury 
must  first  be  charged  to  inquire  of  the  principal  offender;  and  if  they 
find  him  guilty,  then  to  inquire  of  the  receipt,  and  if  the  principal  be 
not  guilty,  then  to  acquit  both;  and  accordingly  it  was  ruled  in  ^r- 
deii's  case.(^)[4] 

For  tho,  in  law,  they  be  both  principals  in  treason,  and  possibly 
process  of  utlary  may  go  against  him,  that  receives,  at  the  same  time 
as  against  him,  that  did  the  fact;  and  tho  the  principal  appear,  process 
may  go  on  against  the  other  (otherwise  in  the  case  of  an  accessary 
in  felony,  Stamf.  Plct.  Cor.  47.)  yet  in  truth  he  is  thus  far  an  acces- 
sary, that  he  cannot  be  guilty,  if  the  principal  be  innocent. 

(/)  See  postea  Book  II.  cap.  28.  And  therefore  the  conviction  of -lady  Alice  Lisle, 
1  Jac.  II.  was  contrary  boUi  to  law  and  reason,  for  that  Hicks  the  principal  (for  barboutr 
ing  whom  she  was  convicted  of  treason)  was  not  at  that  time  convicted,  nor  indeed  was 
there  any  proof  that  she  at  that  time  knew  he  had  been  in  the  rebellion.  Slate  Tr.  Vol, 
IV.  p.  105. 

(g)  lAnd.n.  154.  >.  109. 

[3]  The  words  "  may  be  otherwise"  do  not  clearly  convey  the  idea  that  it  is  univer- 
sally otherwise.  In  all  cases  of  a  receiver  the  indictment  must  be  special  on  the  receipt, 
and  not  general.  The  words  "  may  be  otherwise  in  case  of  a  procurer,  tfcc."  signify 
that  it  may  be  otherwise  in  all  treasons,  or  that  it  may  be  otherwise  in  some  treasons. 
If  it  may  be  otherwise  in  some  treasons,  without  contradicting  the  doctrines  of  Hale 
himself  as  well  as  of  other  writers,  but  cannot  be  otherwise  in  all  treasons  without  such 
contradiction,  the  fair  construction  is,  that  Hale  used  these  words  in  their  restricted 
sense;  that  he  used  them  in  reference  to  treasons  in  which  a  general  indictment  would 
lie,  not  to  treasons  where  a  general  indictment  would  not  lie,  but  an  overt  act  of  the 
treason  must  be  charged.  Per  Marshall,  C.  J.  2  Burr's  Tr.  434. 

[4]  Tiie  conviction  of  some  person,  who  has  committed  the  treason,  must  precede  the 
trial  of  him  who  advised  or  procured  it.  2  Burr's  Tr.  461. 

But  in  all  acts  of  approbation,  incitement,  advice,  or  procuring,  in  case  of  treason  in 
compassing  the  king's  death,  the  party  may  be  tried  before  the  person  who  acted  upon 
such  incitement;  because  the  bare  advising  or  encouraging  such  acts,  is  in  itself  an 
overt-act  of  compassing;  and  it  is  immaterial  whether  the  attempt  was  ever  made  or 
not.  But  in  the  other  treasons  in  the  25  Edw.  3.  if  one  advise  another  to  commit  them, 
or  furnisli  him  means  for  that  purpose,  and  tlie  fact  is  committed,  the  adviser  will  be  a 
principal  traitor;  for  such  advice  would  have  made  him  an  accessary  before  the  fact  in 
felony ;  but  if  the  act  were  not  committed,  the  adviser  could  not  be  a  traitor.  In  these 
cases  the  treason  is  of  a  derivative  nature  and  depends  upon  the  guilt  of  the  agent,  the 
proof  of  which  can  only  be  legally  ascertained  by  his  conviction.  Fast.  346.  342,  1  East, 
PL  100.  4  Bl.  Com.  35.  . 


HISTORIA  PLACITORUM  CORONA.  238 

How  far  Mortimer^s  case  agrees  with  law  at  this  day,  vidcbimus 
infra,  8f  vide  supra. 

That,  which  will  not  make  an  accessary  to  felony  after 
the  fact,  will  not  make  a  man'principal  in  treason;  therefore    [  239] 
sending  of  a  letter  for  his  deliverance,  or  speaking  a  good 
word  for  him,  ^-c.  will  not  be  treason.     Slum/.  PL  Cor.  41.  b.  how 
far  charitable  relief  will  do'\t.,xide  infra  super  staluium  13  Eliz. 
cap.  l.[5] 

[5]  The  principle  that  the  same  acts  which  make  a  man  an  accessary  in  felony,  make 
him  a  principal  in  treason  applies,  it  is  presumed,  in  respect  to  treason  in  tlie  state  of 
Virginia  ;  but  whether  it  does  in  respect  to  treason  against  the  United  States  is  doubt- 
ful; because  the  acts  in  which  treason  against  the  United  States  shall  consist  are  pre- 
cisely  defined  by  the  federal  constitution  in  terms  which  seem  to  exclude  all  accessorial 
treasons  ;  and  because,  too,  the  common  law,  of  which  this  doctrine  is  a  part,  is  not  the 
law  of  the  United  States,  though  it  has  been  severally  adopted  by  all  of  them  except  one. 
Davis's  Virg.  Cr.  Law,  38.  But  it  was  laid  down  by  Judge  Chase,  in  Fries'  Trial,  199. 
that  in  treason  all  ibe  pa rticepes  criininis  are  principals;  that  there  are  no  accessaries  in 
this  crime.  All  persons  who  are  present,  and  countenancing  and  are  ready  to  afford 
assistance,  if  necessary,  to  those  who  actually  commit  any  treasonable  act,  are  also  prin- 
cipals. If  a  number  of  persons  assemble  and  set  out  upon  a  common  design,  as  to  resist 
and  prevent  by  force,  the  execution  of  any  law,  and  some  of  them  commit  acts  of  force 
and  violence  with  intent  to  oppose  the  execution  of  any  law,  and  others  are  present  to  aid 
and  assist  if  necessary,  they  are  all  principals.  If  any  man  joins  and  acts  with  an 
assembly  of  people,  his  intent  is  alwaj's  to  be  considered  and  adjudged  to  be  the  same  as 
theirs;  and  the  law  in  this  case,  judgeth  of  the  intent  by  the  fact.  If  a  number  of  per- 
sons combine  or  conspire  to  effect  a  certain  purpose,  as  to  oppose  by  force,  the  execution 
of  a  law,  any  act  of  violence  done  by  any  one  of  them,  in  pursuance  of  such  combination 
and  with  intent  to  effect  such  object,  is  in  consideration  of  law,  the  act  of  all  who  are 
present  when  such  act  of  violence  is  committed.  If  persons  collect  together  to  act  for 
one  and  the  same  common  end,  any  act  done  by  any  one  of  them,  with  intent  to  effectu- 
ate such  common  end,  is  a  fact  that  may  be  given  in  evidence  against  all  of  them.  It 
appears  to  the  court,  says  Chief  Justice  Marshall,  (2  Burr's  Tr.  405.)  that  those  who 
perform  a  part  in  the  prosecution  of  the  war  may  correctly  be  said  to  levy  war  and  to  com- 
mit treason  under  the  constitution.  It  will  be  observed  that  this  opinion  does  not  extend 
to  the  case  of  a  person  who  performs  no  act  in  the  prosecution  of  the  war — who  counsels 
and  advises  it — or  who,  being  engaged  in  the  conspiracy,  fails  to  perform  his  part. 
Whether  such  persons  may  be  implicated  by  the  doctrine,  that  whatever  would  make  a 
man  an  accessary  in  felony  makes  him  a  principal  in  treason,  or  are  excluded,  because 
that  doctrine  is  inapplicable  to  the  United  States,  the  constitution  having  declared  that 
treason  shall  consist  only  in  levying  war,  and  having  made  the  proof  of  overt  acts  neces- 
sary to  conviction,  is  a  question  ot  vast  importance,  which  it  would  be  proper  for  the 
Supreme  Court  to  take  a  fit  occasion  to  decide ;  but  which  an  inferior  tribunal  would  not 
willingly  determine  unless  the  case  before  them  would  require  it.  This  doctrine 
remains  still  in  uncertainty,  having  never  come  up  before  the  Supreme  Court  of  the 
United  Slates.  See  4  Tucker's  Bl.  Com.  Appdx.  41.  1  East,  P.  C.  93.  4  Bl.  Com.  34. 
323.  Fosl.  341.  Hawk.  c.  17.  s.  39. 


239  HISTORIA  PLACITORUM  CORONA. 

CHAPTER  XXIII. 

CONCERNING  FORFEITURES  BY   TREASON. 

Having  gone  thro  the  several  treasons  declared  by  this  statute,  I 
shall  now  proceed  to  what  follows  in  this  statute,  which  is,  1.  Touch- 
ing forfeitures  of  high  treason. [1]  2.  Touching  declaring  of  treason 
by  parliament,  and  under  this  head  shall  consider  those  several  de- 
clarations and  new  enacted  treasons  since  the  statute  of  25  E.  3.  and 
how  they  stand  at  this  day. 

The  forfeitures  for  treason  are  either  goods  or  lands. 

As  to  goods:  the  king's  prerogative  as  to  goods  forfeit  for  treason 
is  the  same  as  to  forfeitures  for  felony,  only  there  seems  to  be  some 
diflerence  in  relation  to  grants  thereof.  22  Jiss.  49.  The  king  grants 
to  the  master  of  St.  Leonard's  Omnia  bona  S^"  catalla  tenenliuni 
stioruni  fugitivorum,  and  felonum  qualitercunque  damnatorum. 
A  tenant  of  the  master's  was  convict  and  attaint  for  killing  of  the 
king's  messenger,  which  at  that  time  was  held  higli  treason;  it  was 
ruled,  that  the  master  shall  not  have  the  goods  of  this  person  by  force  >-' 
of  this  general  grant. 

As  to  lands  this  statute  of  25  E.  3.  goes  farther,  Et  soit  a  entendus, 
qe  les  cases  suisnosmes  doit  estre  adjugge  treason,  qe  se  extend  a 
nostre  seigneur  le  roy  &  sa  royal  majesty,  &  de  tiel  manners  de  trea- 
sons le  forfeiture  des  eschetes  appertenont  a  nostre  seigneur  le  roy,ci 
bien  de  terres  &  tenements  tonus  des  autres,  come  de  Ini  mesme. 

I  shall  here  examine,  1.  Of  what  lands  the  king  shall  have 
r  240  ]  the  eschete  upon  attainder  of  treason,  and  2.  In  what  man- 
ner or  degree  he  shall  have  those  eschetes.     3.  Where  a 
subject  in  point  of  privilege  or  franchise  shall   have  these  royal 
eschetes. 

I.  As  to  the  first  of  these,  what  lands  are  forfeit  to  the  king  by 
attainder  of  treason,  my  lord  Coke,  PL  Cor.  p.  19.  gives  a  full  ac- 
count of  them,  which  I  shall  repeat  with  some  additional  observa- 
tions: 1.  At  common  law  the  lands  entailed  were  forfeited  for  trea- 
son, because  it  was  a  fee-simple  conditional;  but  by  the  statute  IV.  2. 
de  donis  conditionalibus  the  forfeiture  of  lands  entailed,  even  in  case 
of  treason,  was  taken  away,  and  the  general  words  of  this  statute  of 
25  E.  3.  doth  not  repeal  the  statute  of  Westm.  2. 

But  some  later  statutes  have  given  to  the  king  the  forfeiture  for 
treason  of  lands  entailed:  the  statute  of  21  jff.  2.  cap.  3.  did  give  the 
forfeiture  of  lands  entailed  to  the  king  for  the  treasons  therein  men- 
tioned; but  that  statute  with  the  whole  parliament  of  21  li.  2.  was 
repealed  by  the  statute  of  1  H.  4.  cap.  3. 

[1]  The  Constitution  (Art.  3.  Sect.  3.)  declares  that  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture,  except  during  the  life  of  the  person  attainted.  By  the 
24  Sect,  of  the  Act.  of  30  April,  1790,  it  is  enacted,  That  no  conviction  or  judgment,  &c. 
shall  work  corruption  of  blood,  or  any  forfeiture  of  estate. 


HISTORIA  PLACITORUM  CORON.^.  240 

By  the  statute  of  26  H.  8.  cap.  13.  in  fine  lands  entailed  are  for- 
feited by  attainder  of  treason,  viz.  "All  such  lands,  tenements,  and 
hereditaments,  which  any  such  offender  shall  have  of  any  estate  of 
inheritance  in  use  or  possession,  by  any  right,  title,  or  means,  within 
any  of  the  kitig's  dominions  at  the  time  of  any  such  treason  commit- 
ted, or  at  any  time  after,  saving  to  all  persons,  other  than  the  otren-^- 
ders,  their  heirs  and  successors,  and  such  persons  as  claim  to  any  of 
their  uses,  all  such  right,  title,  interest,  possession,  4*c.  as  they  might 
have  had  if  this  act  had  not  been  made." 

And  by  the  statute  of  33  H.  8.  cap.  20.(a)  "That  if  any  person 
be  attaint  of  high  treason  by  the  course  of  the  common  law  such, 
attainder  shall  be  of  as  good  force,  as  if  it  had  been  by  parliament; 
and  the  king,  his  heirs  and  successors,  shall  have  as  much  benefit  by 
such  attainder,  as  well  of  uses,  rights,  entries,  conditions,  as  posses- 
sions, reversions,  remainders  and  all  other  things,  and  shall 
be  deemed  in  the  actual  and  real  possession  of  the  lands,  [  241  J 
tenements,  hereditaments,  uses,  goods,  chatties,  and  all  other 
things  of  the  offender,  which  his  highness  ought  to  have,  if  the  attain- 
der had  been  by  authority  of  parliament,  without  any  olBce  or  inqui- 
sition to  be  found  for  the  same,  saving  to  all  persons,  (other  than  the 
offenders  and  their  heirs  and  assigns,  and  other  persons  claimirig  by, 
from  or  under  them  or  to  their  uses  after  the  treason  committed)  all 
such  right,  title,  use,  possession,  entry,  reversion,  remainder,  interest, 
condition,  fees,  offices,  rents,  annuities,  commons,  leases,  and  all  other 
commodities,  and  hereditaments  whatsoever,  which,  they  should, 
might,  or  ought  to  have,  if  this  act  had  not  been  made." 

And  the  statute  of  5  4*  6  Ed.  6.  cap.  11.  is  to  the  same  effect. 

These  statutes  as  to  the  forfeiture  of  lands  entailed  remain  in  force, 
and  are  not  repealed  by  the  statute  of  1  Mar.  and  so  it  hath  been 
often  ruled,  and  particiilarly  by  all  the  judges  in  the  lord  Sheffield's 
case  21  Jac  de  quo  postea. 

And  the  reason  is,  because  the  statute  of-1  Mar.  cap.  1.  enacting, 
that  no  treason  shall  be,  but  what  was  enacted  by  25  E.  3.  and  that 
no  pains  of  death,  penalties  or  forfeitures  shall  ensue  for  doing  any 
treason,  other  than  be  in  the  statute  of  25  E.  3.  these  words  other 
than  be  mentioned  in  the  statute  of  25  E.  3.  refer  to  treasons,  not 
to  forfeitures  or  penalties;  and  therefore  tho  by  the  statutes  of  2Q 
and  33  H.  8.  new  penalties,  viz.  forfeitures  of  lands  intailed,  are 
introduced,  this  forfeiture  is  not  repealed,  but  only  new  treasons  not 
mentioned  in  25  E.  3.  so  that  at  this  day,  if  tenant  in  tail  be  attaint 
of  treason,  the  estate-tail  is  forfeited,  and  yet  this  attainder  works  no 
corruption  of  blood  as  in  relation  to  the  heir  in  tail :  vide  the  lord 
Lumley's  case  cited  in  Doiufy's  case,  3  Co.  Rep.  10.  b.  Grandfather 
tenant  in  tail,  father,  and  son,  the  father  is  attaint  of  treason  and 
dies,  the  grandfather  dies,  the  land  shall  descend  to  the  grandchild, 
for  the  father  could  forfeit  nothing,  for  he  had  nothing  to  forfeit; 

(a)  See  the  cause  of  making  this  act,  3.  Co.  Rep.  10.  b, 
VOL.    I. — 27 


S41  HISTORL\  PLACITORUM  CORONA. 

and  the  statute  of  26  H.  8,  that  gives  the  forfeiture  of  tenant  in  tail, 
yet  corrupts  not  the.  blood  by  the  attainder  of  the  father. 

And  therefore  it  is  agreed  in  the  principal  case,  that  if 
[242]  after  26  H.  8.  and  before  33  //.  8.  which  vests  all  in  the 
king  without  office,  if  tenant  in  tail  had  been  attainted  of 
treason,  and  died  in  that  interval,  the  land  would  have  descended  to 
his  son  till  office  found;  but  otherwise  in  case  of  tenant  in  fee-simple 
attainted  and  dying  before  office,  the  freehold  is  cast  upon  the  king 
without  office,  because  none  could  take  it  else, 

2.  The  king  at  common  law  and  by  virtue  of  this  statute  was 
entitled  to  a  right  of  entry,  where  the  party  was  in  merely  by  dis- 
seisin or  abatement,  but  not  to  a  right  of  entry,  where  the  possessor 
was  in  by  title;  but  at  this  day  by  virtue  of  the  statute  of  33  H.  8. 
above-mentioned  the  king  is  entitled  to  a  right  of  entry  iri  both  cases, 
and  that  without  office,  but  then  there  must  be  an  inquisition  or 
seizure  to  bring  the  king  into  the  actual  possession ;  and  if  he  grant 
it  over  before  such  seizure,  the  grant  must  be  special,  not  of  the  land 
simply,  but  of  the  right  to  the  land,  otherwise  neither  land  nor  the 
right  of  entry  passelh;  it  is  so  adjudged  in  Dowfy^s  case,  3  Co.  Rep. 
10.  b. 

3.  If  a  person  committing  treason  hath  at  the  time  of  the  treason 
committed  a  bare  right  of  action  touching  any  lands,  or  a  right  to 
reverse  a  judgment  given  against  him  by  writ  of  error,  or  a  right  to 
bring  a  formedon,  or  writ  of  entry,  but  hath  no  right  of  entry  with- 
out such  recovery  in  such  action;  this  right  neither  at  common  law 
nor  by  the  statute  of  33  H.  8.  is  given  to  the  king  by  the  attainder 
of  treason,  3  Co.  Rep.  3.  a.  marquis  of  TVinchester^s  case,  3.  Co. 
Rep.  10.  b.  Doivty^s  case  so  adjudged;  but  yet  there  have  been 
two  great  cases  resolved,  that  tread  hard  upon  the  heels  of  this 
judgment. 

H.  15  Eliz.  PL  Com.  552.  b.  Walsins;ham^s  case:  Wyat  tenant 
in  tail  of  the  gift  of  king  Henry  VII.  the  reversion  in  the  crown, 
made  a  feoffment  in  fee,  and  then  was  attaint  of  treason,  and  died 
leaving  issue,  tho  the  feotfor,  against  his  own  feotl'ment,  could  not 
claim  any  right  at  the  time  of  the  treason;  yet  it  was  adjudged, 
1.  That  there  remained  in   him  such  a  right  of  the  entail,  as  was 

forfeited  to  the  king.     2.   And  that  the  king  was  in  as  of 
\_  243  ]  his  reversion,  and  should  not  be  subject  to  leases  duly  made 

by  JVyat  before  his  attainder. 
21.  Jac.  in  Camera  Scaccarii  Stone  and  Newman's  case,  it  was 
adjudged  in  B.  R.  and  affirmed  i)i  Catnera  Scaccarii  by  the  greater 
number  of  justices.  Bii^ott  tenant  in  tail  general  makes  a  feoff- 
ment to  the  use  of  himself  and  his  heirs;  and  before  the  statute  of 
26  or  27  H.  8.  commits  treason,  and  is  attaint  of  treason,  and  dies 
leavitiij  issue  inheritable  to  the  entail,  then  a  special  statute  is  made 
31  //.  8.  whereby  he  was  to  forfeit  all  estates  and  rights;  yet  it  was 
adjudged,  1.  That  against  his  own  feoflment  the  tenant  in  tail  could 
have  no  right,  and  therefore  if  the  case  had  stood  barely  so,  the 
right  of  the  entail  could  not  have  been  forfeited  by  the  attainder. 


HISTORIA  PLACITORUM  CORONA.  043 

2.  But  when  an  estate  returns  to  him,  that  is  forfeited  by  the 
attainder,  tlie  king  shall  hold  this  estate  discharged  of  the  right  of 
the  old  entail,  and  that  right  shall  never  revive  to  the  issue.  3.  That 
the  retrospect  of  the  king's  title  by  the  attainder  shall  over-reach  and 
avoid  the  remitter,  which  was  wrought  in  the  issue  before  the  king's 
actual  seisin  by  the  attainder  or  office  thereupon. 

But  it  is  to  be  noted,  that  if  the  king  makes  a  gift  in  tail,  saving 
the  reversion  to  himself,  the  attainder  of  treason  of  such  tenant  in 
tail  shall  not  bar  his  issue,  because  the  statute  of  34  H.  8.  cap.  20. 
enacts,  "  That  the  heir  in  tail  in  such  case  shall  have  the  lands,  any 
recovery,  or  any  other  thing  or  things  hereafter  to  be  had,  done,  or 
suffered  by  or  against  such  tenant  in  tail  to  the  contrary  notwith- 
standing;" which  act  coming  after  26  H.  8.  and  33  H.  8.  that  gave 
the  forfeiture  of  lands  entailed,  is  a  repeal  of  those  statutes  as  to  this 
case,  and  a  restitution  of  the  statute  de  donis  condilionulibus  in  this 
special  case:  and  therefore,  where  in  Plowden^s  Co7Jimenlaries 
{fJ'\i /sing ham's  ca.sc)  PFi/af,  who  was  tenant  in  tail  of  the  gift  of 
the  crown,  the  reversion  in  the  crown,  was  attaint  of  treason  1  Mar. 
he  had  not  forfeited  his^  land  by  virtue  of  the  statutes  of  26  or  33 
H.  8.  if  there  had  been  no  more  in  the  case;  but  in  that  case  he  lost 
it,  because  by  special  act  of  1  <§'  2  Fh.  <§'  3Iar.  that  attainder  was 
confirmed,  and  farther  it  was  enacted,  "  That  he  should  for- 
feit all  the  laflds,  tenements,  and  hereditaments,  whereof  he  f  244  1 
or  any  to  his  use  was  seized  the  day  of  the  treason  com- 
mitted, saving  the  right  of  all  persons  other  than  the  person  attainted 
and  his  heirs,  and  all  claiming  under  them  after  the  treason  com- 
mitted;" and  this  act  coming  after  34  H.  8.  cap.  20.  repealed  that 
act  as  to  this  case,  as  the  act  of  34  H.  8.  repealed  the  acts  of  26  and 
33  H.  S.  as  to  entails  of  the  gift  of  the  crown,  where  the  reversioa 
continues  in  the  crown. 

But  since  all  these  statutes  it  is  enacted  by  the  statute  of  5  <§'  6  Ed. 
6.  cap.  11.  "That  every  offender  being  lawfully  convict  of  any  man- 
ner of  high  treason  according  to  the  course  and  custom  of  the  com- 
mon law  shall  lose  and  forfeit  to  the  king's  highness,  his  heirs  and 
successors,  all  such  lands,  tenements,  and  hereditaments,  which  any 
such  offender  or  offenders  shall  have  of  any  estate  of  inheritance,  in 
his  own  right,  in  use,  or  possession,  within  this  realm  of  Englandj 
or  elsewhere  within  the  king's  dominions  at  the  time  of  such  treason 
committed,  or  at  any  time  after:"  this  act  coming  after  34  H.  8. 
makes  lands  of  the  gift  of  the  king  in  tail  subject  to  forfeiture  for 
treasons,  as  well  as  other  lands  entail.     16  Eliz.  Dy.  332.  h. 

4.  At  common  law  the  king  was  not  entitled  to  a  condition,  that 
was  in  the  party  attainted;  but  now  by  the  express  words  of  the 
statute  of  33  H.  8.  the  king  is  in  some  cases  entitled  to  a  condition 
of  re-entry  belonging  to  the  party  attainted,  viz.  not  to  the  land  itself 
but  to  the  benefit  of  that  condition,  which  might  reduce  the  land  into 
the  possession  of  the  party  attainted,  if  he  had  not  been  attainted, 
and  now  to  the  benefit  of  the  king :  but  herein  this  difierence  is  to 
be  observed. 


244  HISTORIA  PLACITORUM  CORONA. 

1.  If  the  condition  be  such,  as  that  the  substance  of  the  perforln- 
ance  thereof  is  not  bound  up  strictly  to  the  person  attaint,  then  such 
a  condition  is  given  to  the  crown,  and  he  may  perform  it,  as  the 
party  himself  might  have  done  in  case  the  condition  hath  a  continu- 
ance. 

7  Co.  Bep.  W.h.  Engle field's  case:  Sir  Francia  Engle field  con- 
veyed his  lands  to  the  use  of  himself  for  life,  the  remainder 
[  245  ]  to  his  nephew  and  the  heirs  male  of  his  body,  4'c.  with  a 
proviso,  Xhvki  in  as  much  as  he  might  turn  prodigal,  and  there- 
fore for  a  bridle  to  him,  if  Sir  Francis  by  himself,  or  any  other  dur- 
ing his  life,  should  deliver  or  offer  to  his  nephew  a  ring  of  gold  to 
the  intent  to  make  void  the  uses,  then  the  uses  should  cease — Sir 
Francis  is  attaint  of  treason;  it  was  ruled,  that  the  queen  in  the  life- 
time of  Sir  Francis  may  by  commission,  SfC.  tender  the  ring  and 
make  void  the  uses,  for  it  was  not  personally  annexed  to  him,  but 
might  be  performed  by  the  queen. 

This  case  was  judged  M.  33  <§'  34  Eliz.  but  it  was  not  thought 
safe  to  rely  upon  this  judgment;  but  35  Eliz.  cap.  5.  there  was  a 
special  act  of  parliament  reciting  the  attainder  and  the  conveyance 
with  the  provisio:  "And  it  is  declared  and  enacted,  that  the  attainder 
be  confirmed,  and  that  the  queen  was  lawfully  entitled  to  take  bene- 
fit and  advantage  of  that  proviso  in  the  same  form,  as  Sir  Francis 
Englefield  might  have  done,  and  that  the  said  provi^  or  condition 
was  well  performed  by  the  queen's  commission:"  But  suppose  Sir 
Francis  had  died  before  the  queen  had  made  the  tender,  then  the 
condition  which  was  only  limited  to  him  during  his  life,  had  been 
determined,  and  the  queen  could  not  have  tendered,  for  the  attainder 
could  not  lengthen  the  condition  longer  than  the  first  limitation;  but 
on  the  other  side,  if  the  condition  be  appropriated  and  applied  to  the 
person  of  the  party  attaint,  then  such  condition  is  not  given  to  the 
crown. 

The  duke  oi  NorfoWs  case  11  Eliz.{b)  cited  in  Englefield's  case 
to  be  adjudged  and  then  agreed  by  the  court:  the  duke  conveyed 
land  to  uses,  provided  that  if  he  shall  be  minded  to  revoke,  and  shall 
signify  his  mind  in  writing  under  his  proper  hand  and  seal  subscribed 
by  three  witnesses,  that  then  the  uses  should  be  revoked;  it  was 
ruled,  that  this  condition  was  not  given  to  the  crown  by  his  at- 
tainder. 

2.  Car.  1.  B.  B.  Sir  William  Shelly,{c)  made  a  feoffment  to  the 
use  of  himself  for  life,  the  remainder  to  his  first,  second,  third, 
J^  246  ]  and  other  sons  in  tail,  provided,  that  if  Sir  Hilliam  Shelly 
at  any  time  during  his  life  give  or  deliver,  or  lawfully  ten- 
der to  the  feoffees  or  any  of  them,  their  heirs  or  assigns,  a  gold  ring, 
or  a  pair  of  gloves  of  the  price  of  twelve-pence  ipso  Willielmo  tunc 
declarante  Sf"  expressante,  that  the  tender  was  to  the  intent  to  avoid 
the  deed,  that  then  it  should  be  void,  and  the  feofees  should  stand 

(b)  7  Co.  13,  a. 

(c)  See  this  case  by  the  name  of  Warner  and  Hardwin  in  Latch  25,69,102.   W. 
Jones  134. 


HISTORIA  PLACITORUM  CORONA.  246 

seised  to  the  use  of  Sir  William  and  his  heirs;  and  it  was  adjudged 
in  the  common  pleas,  tliat  this  condition  was  so  personal,  that  it  was 
not  given  to  the  khig,  but  upon  a  writ  of  error  in  B.  JR.  the  court 
was  "divided;  Whitlock  and  Jones,  that  it  was  given,  Croke  and 
Doderidge,  that  it  was  not  given  to  the  king,  <§•  sic  stetit. 

In  the  case  of  Wheeler  and  Smi/h,{d)  Simon  Mayne  being  pos- 
sessed of  the  rectory  of  Haddenharn  for  sixty  years,  in  1613,  assigned 
it  over  to  trustees  in  trust  for  himself  for  life,  and  afterwards  to  di- 
vers other  trusts  for  payment  of  debts  and  oiher  things,  provided 
nevertheless  and  upon  condition,  that  if  the  said  Simon  iV/c/r/ne  shall 
at  the  time  of  his  decease  have  issue  of  his  body,  that  then  and 
from  thenceforth  the  trustees  shall  stand  possessed  for  such  person 
and  persons,  and  such  estate  and  estates,  as  Simon  Mayne  by  his 
last  will  and  testament  shall  limit  and  appoint,  and  for  want  of  such 
Hmitation  and  appointment,  in  trust  for  such  after-born  child ;  pro- 
vided also,  that  if  the  said  Simon  Mayne  shall  hereafter  during  his 
life  be  minded  to  make  void  these  present  indentures,  or  any  use  or 
trust  therein,  or  to  limit  new  uses,  and  the  same  his  mind  shall  de- 
clare or  signify  under  his  hand  and  seal  in  the  presence  of  two  wit- 
nesses, then  the  uses  shall  cease,  and  then  the  trustees  shall  stand 
possessed  to  such  uses,  as  he  by  such  deed  or  writing,  or  by  his 
last  will  and  testament  in  writing  shall  limit  and  appoint.  Simon 
Mayne  was  guilty  of  the  execrable  murder  of  the  king,  had  issue  a 
son,  was  attainted,  and  died  without  making  any  such  will  or  revo- 
cation or  declaration,  and  by  act  of  parliament  all  the  estates,  which 
he  had  or  any  in  trust  for  him,  and  all  rights,  conditions,  ^-c.  were 
vested  in  the  crown,  who  granted  this  rectory  to  the  duke  of  Yorkj 
and  by  him  the  same  was  granted  to  Sir  William  Smyth-: 
it  was  adjudged  in  the  common  pleas,  and  upon  a  writ  of  [247]] 
error  affirmed  in  the  king's  bench,  P.  23  Car.  2.  that  Sir 
William  Smyth  had  no  title  to  this  rectory :  1.  That  this  was  a  per- 
sonal condition  and  not  given  to  the  king,  under  his  hand  and  under 
his  proper  hand,  being  all  one  in  sense  and  appropriate  to  his  person. 
2.  That,  if  it  were  given,  yet  the  same  expiring  by  the  death  of  Mayne 
could  not  be  performed  after  his  death  by  the  king.  3.  Admitting  it 
might,  yet  nothing  but  the  condition  was  in  the  king,  and  not  the 
rectory  itself,  till  the  condition  performed.  4.  That  consequently  the 
rectory  passed  not  to  the  duke  of  York,  because  the  condition  was 
not  performed.  5.  Neither  the  performance  of  the  condition  nor  the 
benefit  thereof  passed  to  the  duke  by  the  general  grant  of  the  rectory, 
but  it  must  have  been  specially  granted,  or  otherwise  nothing  passed. 
6.  That  here  was  no  estate  m  trust  for  Simon  Mayne  longer  than 
during  his  life,  because  the  whole  residue  of  the  trust  was  out  of 
him,  and  was  not  reducible  back  to  him,  but  by  a  strict  performance 
of  the  condition  or  power,  which  was  strictly  tied  to  the  person  of 
Simon  Mayne,  and  determined  by  his  death,  and  therefore  not  given 
to  the  crown;  but  if  it  had  been  given  to  the  crown,  and  might  by 
the  crown  be  transferred  to  the  patentee,  yet  it  seems  the  patentee 
id)  See  this  case  reported  2  i£e6.  564,  608,  6763,  772.    1  Mod.  16,  38. 


247  HISTORIA  PLACITORUM  CORONiE. 

could  not  transfer  or  assign  that  condition  over  to  another;  but  this 
last  question  was  not  moved,  as  I  remember,  for  the  resolution  of  the 
former  points  made  an  end  of  the  case. 

5.  At  common  law  the  king  by  attainder  of  treason  was  not  en- 
titled to  uses  or  trusts  belonging  to  the  party  attaint :  thus  it  is  recited 
to  be  the  law  by  the  statute  of  27  H.  S.  cap.  10.  and  was  one  of  the 
reasons  of  the  making  of  that  statute  for  transferring  of  uses  into 
possession  ;  and  hence  it  was,  that  in  some  general  acts  touching 
treason,  as  that  of  21  ^.  2.  cap.  3.  and  in  most  particular  acts  of 
attainder,  that  were  made  after  that  time,  there  was  special  provision 
made,  that  the  parties  attaint  should  forfeit  all  the  lands,  whereof 
they  or  any  other  to  their  use  were  seized,  and  in  most  of  those  acts 
provision  was  also  made  to  save  from  forfeiture  such  lands,  whereof 
the  persons  attaint  were  seized  to  the  use  of  any  other,  as 
[  248]  may  be  seen  in  the  acts  of  attainder:  vide  Rot.  Pari.  1  E. 
4.  w.  18.  3  E.  4.  n.  28.  4'C.[2] 

And  yet,  altho  the  statute  of  27  H.  S.  cap.  10.  had  executed  uses 
into  possession,  so  that  after  that  statute  all  uses  were  drowned  in 
the  land,  yet  there  have  succeeded  certain  equitable  interests  called 
trusts,  which  differ  not  in  substance  from  uses;  nay,  by  the  very 
statute  of  27  H.  8.  cap,  10.  they  come  under  the  same  name,  viz. 
uses  or  trusts. 

And  by  the  statute  of  33  H.  8.  cap.  20.  there  is  a  special  clause, 
that  the  person  attainted  shall  forfeit  all  uses,  &c.  and  the  saving  is 
to  all  persons  other  than  the  person  attainted,  and  his  heirs,  and  all 
persons  claiming  to  the  use  of  them  or  any  of  them. 

And  what  other  uses  there  could  be  at  the  naaking  of  the  statute 
of  33  H.  8.  but  only  trusts,  such  as  are  now  in  practice  and  retained 
in  chancery,  I  know  not,  and  yet  such  hath  been  the  opinion  of  men, 
or  rather  their  necessity  in  respect  of  frequent  emergencies  in  estates 
and  their  dispositions  thereof,  that  these  trusts  since  the  statute  have 
not  only  been  kept  from  being  executed  by  the  statute  of  27  H.  8. 
but  have  been  held  and  used  quite  as  other  things  ditferent  from 
uses,  and  from  all  those  burdens,  with  which  uses  were  incumbred 
by  several  acts  of  parliament  made  before  27  H.  8. 

And  therefore  //.  55.  Eliz.  Croke,  ?i.  2.  B.  B.  Ridler  and  Pun- 
ter,{e)  such  a  trust  not  within  the  statute  of  3  H.  1.  cap.  4.  or  any 
other  statute  of  that  nature, 

M.  16  Jac.  B.  B.  Croke,  n.  23.{f)  the  king  made  a  lease  for 
years  to  Sir  John  Duncomhe  of  the  provision  of  wines  for  the  king, 
but  in  trust  for  the  earl  of  Somerset,  who  was  afterwards  attainted 
of  felony ;  by  the  opinion  of  all  the  judges  the  king  shall  have  this 
trust,  and  so  if  a  person  outlawed  have  a  bond  made  to  another  in 
trust  for  iiim,  it  shall  be  executed  by  an  information  in  the  exche- 
quer chamber  or  chancery;  but  it  was  agreed  by  them  all,  and  so 

(e)  Cro  Eliz.  291.  (/)  Cro.  Jac.  512.  Hob.  214. 

[2]  By  the  4  &  5  Will.  4.  c.  2.3.  s.  3.  no  lands  or  chaUels  vested  in  any  trustee  shall  be 
forltit  to  the  king  by  the  attainder  of  such  trustee. 


HISTORIA  PLACITORUM  CORONA.  248 

resolved  in  i/1bingfon''s  case,  that  a  trust,  if  a  freehold,  was  not  for- 
feited by  attainder  of  treason. 

But  iiow  this  resokition  in  ^bingtori's  case  can  stand  [249"] 
with  the  statute  of  33  H.  8.  I  see  not,  for  certainly  the 
uses  there  mentioned  could  then  be  no  other  than  trusts,  and 
therefore  the  equity  or  the  trust  itself  in  cases  of  attainder  of  treason 
seems  forfeited  by  the  statute  of  33  //.  8.  upon  an  attainder  of  cesty 
qe  trust  of  an  inheritance;  tho  possibly  the  land  itself  be  not  in  the 
kin^. 

But  indeed,  where  the  king  or  a  common  person  is  entitled  to  an 
eschete  by  an  attainder  of  felony,  there,  by  the  attainder  of  cesty  qe 
trust  in  fee-simple  the  land  nor  trust  doth  not  come  to  the  king  or 
lord  by  eschete,  for  the  eschete  is  only  oh  defectum  tenentis,  and  in 
this  case  the  king  or  lord  hath  his  tenant,  as  before,  namely  the 
feoffee  in  trust,  who  is  to  be  attendant  for  the  services  to  the  king  or 
lord,  and  by  the  attainder  of  felony  of  the  feoffee,  the  lord  shall  have 
his  eschete  of  the  lands  discharged  of  the  trust ;[3]  and  besides,  an 
attainder  of  felony  is  not  within  the  statute  of  33  H.  8.  cap.  20.  and 
so  it  was  resolved  by  all  the  court  in  the  exchequer,  Al.  21.  Car.  2. 
wherein  the  case  was  thus. (A) 

10  Martii  1  Car.  a  long  lease  of  the  manor  oi  Bony  Tracy  came 
to  Sir  Ralph  Freeman. 

4  Car.  1.  The  fee-simple  thereof  was  conveyed  to  Sir  George 
Sands  and  his  heirs  in  trust  for  Sir  Ralph  Freeman. 

July  1633,  Sir  George  having  issue  two  sons.  Freeman  Sands 
and  George  Sands,  Sir  Ralph  Freeman  devised  part  of  the  m.anor 
to  Freeman  Sands  and  his  heirs,  and  other  part  thsreof  to  George 
the  son  and  his  heirs,  and  devised  all  the  rest  of  the  manor  to  Free- 
man Sands  and  George  his  brother,  and  all  such  other  sons  as  Sir 
George  should  have  by  Jane  his  wife,  and  their  heirs,  and  made  Sir 
George  Sands  and  Ralph  Freeman  executors,  and  appointed  them 
to  convey  the  term  according  to  these  trusts. 

Ralph  Freeman  the  executor  refused,  Sir  George  took  administra- 
tion alone  to  him  and  his  wife  cum  testarnento  aniiexo. 

1635.  Freeman  Sands  died  without  issue,  George  being  his  bro- 
ther and  heir. 

Afterwards  Sir  George  by  ./a ??e  his  wife  had  issue  another 
Freeman  Sands,  but  no  conveyance  was  executed  of  the  [  250  "j 
term  or  inheritance. 

1655.  Freeman  Sands  murdered  his  brother  George,  who  dying 
without  issue  all  that  right  or  trust,  that  was  in  George  the  brother, 
descended  and  survived  to  Freeman. 

7  ^ug.  1655.  Freeman  the  son  was  attainted  of  felony. 

22  Nov.  1655.  Sir  George  takes  administration  to  his  son  George. 

The  land  being  held  of  the  king,  as  of  the  manor  of  East-Green- 

(h)  1  Sid.  403. 

[3]  Copyhold  estates,  in  treason,  are  forfeited  to  the  lord  of  the  manor,  not  to  the 
crown.     Com.  Dig.  "Coprjhold."  {M.)  1.     But  see  2  Haick.  c.  119.  s.  7. 


250  HISTORIA  PLACITORUM  CORONA. 

wich,  the  king's  attorney  preferred  an  information  against  Sir  Georsre 
Sands  in  the  exchequer-chamber  to  have  a  conveyance  both  of  the 
term  and  inheritance  to  be  executed  by  Sir  George  Sands  unto  the 
king,  being  the  lord  of  whom  the  land  was  held;  but  it  was  una  voce 
resolved,  I.  That  as  to  the  inheritance,  tho  there  were  a  trust  for 
George  the  son,  and  that  trust  descended  unto  Freeman  the  mur- 
derer, as  his  brother  and  heir,  and  was  in  him  at  the  time  of  the 
death  of  his  brother  and  at  his  attainder,  as  to  the  greatest  part  of 
the  lands,  and  as  to  the  residue  of  the  lands  the  trust  was  originally 
for  Freeman  Sands,  yet  in  as  much  as  Sir  George  Sands  continued 
seized  of  the  fee-simple,  and  so  was  tenant  to  the  king,  tho  subject 
to  a  trust;  yet  the  trust  escheted  not  to  the  crown,  but  Sir  George 
held  it  discharged  of  the  trust,  2.  That  the  term  for  years  was  not 
extinguished  in  law  by  the  accession  thereof  to  Sir  George,  as  execu- 
tor or  administrator,  tho  Sir  George  had  the  fee-simple,  because  it 
was  en  autre  droit,  that  he  had  the  term.  3.  That  if  the  term  for 
years  had  been  a  term  in  gross  in  trust  for  the  party  attaint,  then  by 
the  attainder  of  felony  the  king  had  been  entitled  thereunto,  not  in 
point  of  eschete,  but  by  his  prerogative,  having  bona  <§'  catallafelo- 
num.  4.  But  this  term  being  to  attend  the  inheritance  the  trust 
thereof  was  not  like  the  trust  of  a  chattle  in  gross,  but  was  to  wait 
upon  the  inheritance  (and  otherwise  it  had  been  impossible  for  the 
greatest  part  to  have  descended  from  George  Sands  to  his  brother 
Freeman  Sands,  unless  it  waited  upon,  the  trust  of  the  inheritance) 
therefore  the  inheritance  remaining  in  Sir  George  now  dis- 
r  251  3  charged  of  the  trust  by  the  attainder  of  Freeman  Sands  the 
trust  of  the  term  shall  also  remain  in  him,  for  it  is  a  kind  of 
incident  or  appurtenant  to  the  inheritance. 

And  in  this  case  the  case  of  Sir  fValter  Raleigh  was  cited,  which- 
was  Mich.  7  Jac.  in  Camera  Scaccarii.  Sir  Waller  Raleigh  being 
possessed  of  a  long  term  for  years  of  the  manor  of  Sherburn,  intend- 
ing to  obtain  the  inheritance  assigned  this  term  to  his  son  an  infant 
upon  pretense  for  a  trust  for  his  son,  but  really  in  trust  for  himself. 

Sir  Walter  Raleigh  then  purchased  the  inheritance  and  made  a 
settlement  upon  his  son,  but  the  same  was  defective,  whereby  the 
fee-simple  remained  in  Sir  Waller. 

1  Jac.  Sir  Walter  was  attainted  of  treason,  and  afterwards  the 
king  granted  all  the  goods  and  chattels  real  and  personal  of  Sir 
Walter  to  Shelbury  and  Smith  in  trust  for  Sir  Walter's  wife  and 
children. 

Sir  Walter  Raleigh  was  executed,  and  upon  an  information  in 
the  exchequer,  M.  7  Jac.  it  is  declared  and  decreed,  that  the  lease 
was  in  trust  for  Sir  Walter,  and  therefore  forfeited  by  his  attainder, 
as  well  as  if  it  had  continued  in  him,  and  that  it  should  be  cancelled, 
and  not  incumber  the  reversion  in  fee-simple. 

So  that  according  to  this  resolution  this  trust  for  Sir  Walter  was 
not  a  chattle,  for  then  it  had  passed  to  Shelbury  and  Smith;  but  it 
was  a  kind  of  appurtenant  to  the  inheritance,  and  together  with  it 
was  forfeited  by  the  attainder,  the  conveyance  of  the  inheritance 


HISTORIA  PLACITORUM  CORONiE.  251 

being  defective,  and  accordingly  at  this  day  it  is  held  by  those  that 
derived  under  the  patent  of  king  James. 

6.  At  common  law  the  king  by  attainder  of  treason  was  not 
entitled  to  any  chatties,  that  the  party  had  en  uulre  droit,  as  exe- 
cutor, or  administrator,  or  in  right  of  a  corporation  aggregate. 

But  the  husband  possessed  of  a  term  in  right  of  his  wife  forfeits  it 
by  attainder  of  treason,  felony,  or  out-lawry;  but  as  to  lands  of 
inheritance,  if  the  husband  be  seized  in  right  of  his  wife,  and  is 
attainted  of  treason,  the  king  hath  the  freehold  during  the  coverture; 
and  so  if  tenant  for  life  be  attainted  of  treason,  the  king 
hath  the  freehold  during  the  life  of  the  party  attainted  ;  and  [  252]] 
so  he  had  before  the  statute  of  26  H.  S.  by  the  attainder  of 
tenant  in  tail. 

Touching  forfeitures  for  treason  by  a  corporation  sole,  or  aggre- 
gate, somewhat  is  observable. 

At  common  law  and  still  to  this  day  in  the  case  of  a  corporation 
aggregate,  as  dean  and  chapter,  mayor  and  commonalty,  where  the 
possessions  are  in  common  in  the  aggregate  corporation,  nothing  was 
or  is  forfeited  by  the  attainder  of  the  head  of  the  corporation,  as  the 
dean,  mayor,  ^^c. 

At  common  law  a  sole  corporation,  as  an  abbot,  bishop,  dean, 
prebendary,  parson,  vicar,  by  attainder  of  treason  forfeited  to  the 
king  the  profits  of  their  abbey,  bishoprick,  prebend,  during  their 
incumbency;  but  their  successors  were  not  bound  by  that  forfeiture, 
for  tho  the  profits  as  they  arose  belonged  to  their  persons,  yet  the 
inheritance  was  in  right  of  their  church,  and  so  not  forfeited. 

But  by  the  general  words  of  the  statutes  of  26  and  33  H.  8.  and 
by  the  exclusive  saving  of  the  rights  of  others,  other  than  the  suc- 
cessors  of  the  persons  attaint,  these  sole  corporations  forfeited  the 
inheritance,  and  their  successors  were  bound  by  such  attainder  ;  for 
it  is  apparent  that  //,  8.  had  not  only  in  prospect  the  dissolution  of 
monasteries,  but  had  a  resolution  to  curb  the  clergy,  who  were  too 
obsequious  to  the  pope  and  his  power. 

And  therefore  there  were  several  attainders  of  abbots  of  high 
treason,  whereupon  the  king  seized  their  possessions,  as  dissolved 
thereby,  as  appears  by  the  statutes  of  27  H.  8.  cap.  28.  and  3\  H.  Q. 
cup.  13.  touching  monasteries,  tho  the  king  rested  not  barely  upon 
such  attainders;  but  by  the  statutes  of  27  and  31  H.  S.  their  posses- 
sions are  settled  in  the  crown  by  those  acts,  and  with  this  agrees  the 
book  of  Dy.  289. 

And  therefore  we  may  observe  in  the  statute  of  1  Mar.  sess.  2.  cap. 
16.  for  the  attainder  of  the  archbishop  of  Canterbury  a  cautious  pro- 
viso was  added,  that  it  should  not  prejudice  his  successors  touching 
the  possessions  of  his  see;  this  was  to  avoid  the  question,  that  other- 
wise might  have  arisen  upon  the  general  words  of  the  forfeitures 
thereby  enacted. 

But  now  by  the  act  of  5  <5'  6  Ed.  6.  cap.  11.  this  matter 
seems  to  be  settled,  for  whereas  by  the  statute  of  26  //.  S.   [  253  ] 
cap.  12.  a  person  attaint  of  treason  is  to  forfeit  all  the  lands  , 

VOL.  I. — 28 


253  HISTORIA  PLACITORUM  CORON^E. 

which  he  had  by  any  right,  title  or  means,  saving  the  right  of  others, 
other  than  the  heirs  and  successors  of  the  person  attaint,  which  con- 
fiscated the  inheritance  of  sole  corporations  attaint  of  treason,  the 
statute  of  5  Sr  6  E.  6.  cap.  11,  enacts  specially^  that  persons  attaint  of 
treason  shall  forfeit  the  lands,  which  they  have  of  any  state  of  inhe- 
ritance in  tlieir  own  right,  and  saves  the  right  of  all  persons,  other 
than  the  persons  attaint^  and  their  heirs,  which  restores  and  preserves 
the  right  of  successors,  as  it  was  at  common  law, 

7.  By  the  common  law  all  hereditaments,  whether  lying  in  tenure 
or  not,  as  rents,  advowsons,  commons,  corodies  certain,  are  forfeited 
to  the  king  by  attainder  of  treason ;  but  such  inheritances,  as  lie 
purely  in  privity,  appropriate  to  the  person,  are  not  forfeited  neither 
at  common  law,  nor  by  any  special  statute,  as  a  foundership,  or  corody 
uncertain, 

8.  At  the  common  law  by  attainder  of  felony  or  treason  of  the 
husband  the  wife  lost  her  dower:  by  the  statute  of  1  E.  6.  cap.  12, 
no  attainder  of  treason  or  felony  excludes  her  dower;  but  by  the 
statute  of  5  <^'  6  ^.  6  c.  11.  the  husband  attaint  of  treason  the  wife 
shall  lose  her  dower;  and  so  it  stands  at  this  day,  except  in  treasons 
enacted  by  particular  statutes,  where  dower  is  saved  to  the  wife, 
notwithstanding  the  attainder  of  her  husband  of  treason,  as  upon  the 
statute  of  5  Eliz.  cap.  11,  for  clipping  money,  18  Eliz.  cap.  1,  for 
impairing  money,  5  Eliz.  cap.  1.  refusing  the  oath  of  supremacy  the 
second  time,  and  some  others. 

And  thus  far  concerning  the  things  forfeited  by  attainder  of  trea- 
son, now, 

II.  I  shall  consider  in  what  kind  or  degree  the  king  hath  these  for- 
feitures of  lands, 

1,  Altho  these  be  called  royal  eschetes,  yet  the  king  is  not  in, 
purely,  as  by  an  eschete,  for  he  hath  those  forfeitures  injure  coronae 
of  whomsoever  the  lands  be  immediately  held;  yea,  tho  they  are  held 
immediately  of  the  king,  he  hath  them  not  in  point  of  eschete,  but 
jure  coronse  or  prerogativae  regalis. 

47  E.  3.  21  b.  A  manor  is  held  of  the  king  as  of  his 
[  254  ]  honor  of  D.  and  the  manor  eschetes  for  the  felony  of  the 
tenant,  it  is  now  parcel  of  the  honor,  and  therefore  by  the 
book  if  the  king  grant  it  out  again  generally,  it  shall  be  held  of  the 
honor,  but  if  it  eschete  for  treason,  it  is  no  parcel  of  the  honor,  and 
if  it  be  granted  out  generally  it  shall  be  held  in  capite,  6  E.  3,  32. 
a.  accordant  adjudge:  vide  the  case  of  Saffron  IValden,  Morels 
Rpp.  n.  301. (e)  <§•  ibidem  n.  405,  the  case  of  the  borough  of  South- 
war  k.{k) 

2,  Where  land  comes  to  the  crown  by  attainder  of  treason  all 
mesne  temires  of  common  persons  are  extinct;  but  if  the  king  grants 
it  out,  he  is  de  jure  to  revive  the  former  tenure,  for  which  a  petition 
of  right  lies.  46.  E.  3.  19.(/) 

3,  If  tenant  in  tail  of  the  gift  of  the  king,  the  reversion  in  the 

(i)  Mo.  159.  {k)  Ma.  251. 

(/)  I  lake  it,  this  should  be  H.  46  E.  3,  Petition  19, 


HISTORIA  PLACITORUM  CORONA.  254 

king,  makes  a  lease  for  years,  and  then  is  attainted  of  treason,  the 
king  shall  avoid  that  lease,  for  the  king  is  in  of  his  reversion,  tho 
tl:e  tenant  in  tail  have  issue  living:  this  hard  case  is  so  adjudged  in 
Conilnentaries  jJustin's  case(/«)  in  fine,  and  yet  if  such  tenant  in 
tail  had,  after  such  lease,  bargained  atid  sold,  or  levied  a  fine  to  the 
king,  he  should  be  bound  by  such  lease  as  long  as  there  is  issue. 
H.  22  Jac.  B.  R.  Croker  and  Kelsey.{n)  1  Rep.  %Alton  Woods 
case.(o) 

III.  The  third  thing  I  propounded  was  the  consideration  of  the 
eschetes  in  case  of  treason  to  such  as  have  royal  franchises,  or 
counties  palatine,  as  Durham,  S,'C. 

1.  At  common  law  divers  lords  had  by  special  grant  or  in  right  of 
their  counties  palatine  royal  eschetes  of  the  lands  held  within  their 
franchises  of  persons  attaint  of  treason  against  the  king. 

Such  was  the  royal  franchise  of  the  manor  of  Wreck  in  John 
Darcy's  case,  6  E.  3.  31.  6. 

It  appears  in  the  parliament-roll  9  E.  2.  m.  8.  that  the  bishop  of 
Durham  claimed  among  divers  franchises  between  the  waters  of 
Tyne  and  Tese,  and  Norhamshire  and  Bedlingtonshire  in  the  county 
of  Northumberland ,  the  forfeitures  of  war,  namely  the  lands 
of  those  who  held  lands  within  that  precinct,  who  adhered  [255  3 
to  the  enemies  of  the  king. 

And  after  many  debates  in  parliament  2  E.  3.  that  liberty  was 
allowed  him  by  the  judgment  of  the  king  and  liis  council  in  parlia- 
ment. 

Clans.  1  E.  3.  part  1.  m.  10.  and  p.  2.  m,.  20.  the  precedents  of  the 
allowance  of  that  liberty  being  produced,  viz.  that  Anthony  bishop 
o{  Durham  had  the  forfeiture  of  Castrum  Bernardi  by  the  forfei- 
fure  oi  John  de  Baliol,  the  manors  of  Hert  and  Hertness  by  the  for- 
feiture of  Robert  Bruce,  the  manor  of  Gretham,  that  was  Peter  of 
MontforV s ;  and,  upon  the  consideration  of  the  several  pleadings  in 
those  cases,  concordatum  est  per  nos  &  totum  concilium  nostrum  in 
ultimo  parliamento,  quod  episcopus  habeat  suam  libertatem  de  hu- 
jusmodi  forisfacturis  juxta  tenorem  &  effectum  cartae  proavi  nostri, 
ideo  vobis  mandamus,  [viz.  the  custos  of  these  lands)  quod  de  terns 
&  tenementis  infra  libertatem  episcopatCis  prsedicti,  &  in  pra3dictis 
locis  de  Norhamshire  &  Bedlingtonshire,  in  manu  nostra  &  in  cus- 
todia  nostra  per  forisfacturam  guerras  existentibus  manum  nostram 
amoventes  vos  ulterius  de  eisdem  non  intromittatis,  and  the  like  par- 
ticularly after  Claus.  1  E.  3.  part  2.  m.  20.  an  amoveas  mantis  for  all 
the  lands  of  Guido  de  Bello  Campo  Comes  Warwick,  §'Z/i  de  rege  te- 
nuit  in  capite  infra  libertatem  cpiscojiatus  Dunelmensis,  and  likewise 
for  the  manors  of  Gainsford,  Hert,  and  Hertness  in  the  hands  of 
Roger  de  Clifford  seised  for  the  forfeiture  of  war  of  John  de  Baliol 
and  Robert  Bruce;  only  the  patentees  not  to  be  put  out  without  an 
answer. 

So  that  it  is  apparent,  that  at  common  law  the  bishop  of  Durham 

im)  Plowd.  560.  a.  (n)  Cro.  Jac.  688.  1  R.  A.  843.  (o)  1  Co.  40.  b. 


555  HISTORIA  PLACITORUM  CORONA. 

liad  the  royal  forfeitures  of  war  (which  was  treason)  for  such  lands 
as  were  within  his  liberty,  tho  they  were  formerly  held  of  the  king 
immediately  in  capite,  if  they  lay  within  the  precinct  of  his  county 
palatine;  and  tho  by  the  statute  of  IE.  6.  the  said  bishopricie  was 
dissolved,  yet  by  the  statute  of  1  Mar.  Pari.  2.  cap.  3.  that  act  is  re- 
pealed and  the  bishoprick  with  its  franchises  revived. 

2.  Yet  farther,  tho  this  act  of  25  E.  3.  declares,  that  all  such  for- 
feitures belong  to  the  king,  yet  this  act  did  not  derogate  from  the 

franchise  of  the  bishop  of  Durham  or  others,  that  had  that 
[]  256  ]|  royal  liberty  of  forfeitures  for  treason,  because  it  was  in 

effect  but  a  declaration  of  the  common  law,  or  at  least  an 
ascertaining  of  it  without  prejudice  to  those,  that  had  these  franchises 
of  royal  forfeitiu'es,  either  by  charter,  or  by  reason  of  their  county 
palatine  by  prescription;  and  this  is  agreed  by  all  the  judges  in  the 
case  of  the  bishop  of  Durham  P.  12.  E/iz.  Dy.  288.  and  accordingly 
Hot.  Pari.  1.  E.  4.  n.  20.  8,'  sequentibiis,  where  by  act  of  parliament 
a  great  many  noblemen,  that  were  of  the  party  of  .^.  6.  were  upon 
the  coming  of  E.  4.  to  the  crown  attainted  and  their  lands  forfeited 
to  the  king;  and  such  as  were  within  the  county  palatine  oi  Lancas- 
ter ^xme.xe&  to  the  duchy  of  Z^ancfirs/er,  and  the  rest  lodged  in  the 
crown;  yet  there  is  a  special  provision  and  exception  of  the  latids 
within  the  bishoprick  o{  Durham,  viz.  between  the  waters  of  Tyne. 
and  Tese,  and  in  the  places  called  Norhamshire  and  Bedlingtonshire 
within  the  county  of  Northumberland,  in  which  liberty  and  place 
the  bishop  o(  Durham  and  his  predecessors  of  time,  whereof  there 
is  no  memory,  have  had  royal  right  and  forfeiture  of  war  in  the  right 
of  the  cathedral  church  of  .9/.  Cuthbert  o{  Durham,  as  by  concord 
in  parliament  in  the  time  of  the  progenitors  of  our  lord  the  king  Ed- 
ward  IV.  it  hath  been  assented. 

3.  Altho  by  the  statute  of  26  H.  8.  and  33  H.  8.  before-mentioned 
it  is  enacted,  that  the  king  shall  have  the  forfeiture  of  all  lands,  Sf-c. 
of  the  persons  attainted  of  treason,  yet  in  as  much  as  in  those  acts 
there  is  a  saving  of  the  rights  of  others,  the  forfeitures  for  all  trea- 
sons, that  were  within  the  statute  25  E.  3.  and  consequently  were 
treasons  at  common  law,  by  tenant  in  fee-simple,  are  saved  to  the 
bishop  of  Durham,  and  those  that  have  such  royal  franchises  of  for- 
feiture of  treasons;  for  these  stand  as  they  did  before,  by  the  opinion 
of  five  judges  agaitist  four.  P.  12.  Eliz.  Dy.  289.  in  the  bishop  of 
Durham'' s  case. 

4.  But  as  to  the  forfeiture  for  new  treasons  enacted  by  any  of  those 
statutes  the  lords  of  franchises  shall  not  have  their  franchise;  this 
was  agreed  by  all :  but  those  new  treasons  that  were  enacted  in  the 
time  of  H.  8.  or  before,  are  all  repealed  by  the  statute  of  1.  Mar. 

cap.  1. 
[  257  ]       5.  But  as  to  treasons,  that  stood  by  the  statute  of  25  E.  3. 

and  therefore  not  repealed  by  1  Mar.  cap.  1.  yet  as  to  the 
forfeitures  of  tenants  in  tail,  or  of  lands  in  the  right  of  churches  or 
monasteries,  the  person  that  hath  jura  regalia  shall  not  have  them, 
because  the  king  before  the  act  of  26  //.  8.  was  not  entitled  to  the 


HISTORIA  PLACITORUM  CORON^E.  057 

forfeitures  of  those  estates;  and  the  statute  of  26  H.  8.  stands  unre- 
pealed as  to  the  forfeitures  for  treasons  wiihin  the  statute  of  25  E.  3. 
these  are  the  points  resolved  in  that  case  of  12  Rliz. 

And  therefore  it  is  observable,  that  in  the  statutes  of  5  EHz.  c.  11. 
whereby  cli|)pina^  is  made  treason,  tho  the  forfeiture  of  lands  is  only 
during  the  offender's  life,  and  no  corruption  of  blood,  nor  loss  of 
dower,  yet  there  are  special  proviso's,  that  ail  persons,  which  have 
any  lawful  grant  to  hold  and  enjoy  the  forfeitures  of  lands,  tene- 
ments, goods,  or  chattels  of  offenders,  and  men  attaint  of  iiigh  trea- 
son within  any  manor,  lordship,  town,  parish,  hundred,  or  other  pre- 
cinct within  the  realm  oi  England  and  IVales  shall  and  may  at  all 
times  have  like  liberty  to  take,  seize,  and  enjoy  all  such  forfeitures  of 
lands,  tenements,  goods,  and  chattels,  as  shall  come  or  grow  within 
their  liberties  by  force  of  the  attainder  of  any  person  upon  any  offense 
made  treason  by  this  act,  as  they  might  have  done  by  virtue  of  any 
grant  to  them  heretofore  made. 

I  do  not  find  the  like  clause  to  my  remembrance  in  any  other  acts 
of  new  treason  either  in  that  of  1  Mar.  sess.  2.  cap.  6.  for  counterfeit- 
ing the  privy  signet  or  sign  manual,  or  in  that  of  1  (§•  2  F/i.  <§•  Mar. 
cap.  11.  for  importing  foreign  counterfeit  coin  made  current  by  pro- 
clamation, or  in  that  of  18  Eliz.  cap.  1.  concerning  washitig  of  coin, 
nor  in  any  of  those  temporary  acts  made  for  the  safeguard  of  the 
queen's  person,  (§'C.  so  that  upon  the  reason  of  the  resolution  of 
12  Eliz.  the  patentees  of  goods  or  lands  of  traitors  by  patents  granted 
before  those  acts,  and  particularly  the  bishop  of  Durham,  Whose 
claim  is  by  prescription,  caiuiot  have  the  goods  or  lands  of  persons 
attainted  for  those  new  treasons:  vide  13  Eliz.  cap.  16,  a  special 
provision  in  the  act  of  attainder  of  the  earl  of  IVeslmoreland  and 
others  for  the  rebellion  in  the  North,  that  the  queen  shall 
have  and  hold  against  the  bishop  o{  Durham  and  his  sue-  [  258] 
cessors  the  lands,  tenements,  goods  and  chattels  of  the  per- 
sons attainted  wuhin  the  county  palatine  and  franchise  of  the  said 
bishop. 

Nay,  I  cannot  see  how  the  bishop  of  Durham  can  either  by  his 
antient  charters  or  prescription  claim  the  goods  or  lands  of  persons 
attaint  for  bringing  in  counterfeit  coin  contrary  to  the  statute  of 
25  E.  3.  for  it  seems  that  that  was  not  treason  at  common  law,  as 
may  reasonably  appear  by  what  has  been  before  said  touching  that 
subject. [3] 

See  a  learned  treatise,  intitutled,  Considerations  on  the  Law  of  Forfeitures  for  High 
Treason;  (supposed  to  be)  written  by  the  Hon.  Cha.Yorke,  sometime  Attorney  General  to 
King  George  III.  and  atlerwards  Lord  High  Chancellor  of  Great  Britain,  per  totum. 
Wilson. 

[3]  The  clause  in  the  1  Ann.  c.21.and  that  in  the  17  Geo.  2.  c.  39.  limiting  the  periods 
when  forfeiture  for  treason  should  be  abolished,  are  repealed  by  the  39  Geo.  3.  c.  93.  So 
that  forfeiture  remains  in  England  as  at  common  law,  in  the  cases  of  treason  and  mur- 
der; in  other  crimes,  no  attainder,  by  the  54  Geo.  3.  c.  145.  shall  extend  to  the  disinherit- 
ing of  any  heir. 

See  Consider,  on  the  Law  of  Forfeitures,  by  Yorke.  2  Hawk.  c.  119.  4  Bl.  Com.  381. 
3  Burn's  Just.  {edit,  of  1845.)  106. 


258  HISTORIA  PLACITORUM  CORONA. 


CHAPTER  XXIV. 

CONCERNING  DECLARING  OF  TREASONS  BY  PARLIAMENT,  AND  THOSE 
TREASONS  THAT  WERE  ENACTED  OR  DECLARED  BY  PARLIAMENT 
BETWEEN  THE  25  OF  E.  3.  AND  THE  1  MAR. 

Altho  the  order  of  the  statute  leads  us  to  consider  of  petit  treason 
in  the  next  place,  yet  because  I  intend  to  absolve  the  whole  dis- 
course of  high  treason  and  naisprision  of  treason,  before  I  descend  to 
crimes  of  an  inferior  nature,  I  shall  proceed  to  a  full  consideration  of 
the  whole  matter  specially  relating  to  high  treason,  and  so  far  as  the 
same  is  not  common  to  other  capital  offenses:  the  statute  therefore 
proceeds,  ''And  because  many  other  like  cases  of  treason  may  hap- 
pen in  time  to  come,  which  a  man  cannot  think  nor  declare  at  this 
present  time,  it  is  accorded,  that  if  any  other  case  supposed  treason, 
which  is  not  above  specified,  doth  happen  before  any  justice,  the  jus- 
tice shall  tarry  without  going  to  judgment  of  the  treason,  till  the  cause 
be  shewed  and  declared  before  the  king  and  his  parliament, 
|[  259  ]]  whether  it  ought  to  be  judged  treason  or  other  felony; 
and  \{  per  case  any  man  of  this  realm  ride  armed  covertly 
or  secretly  with  men  of  arms  against  any  other  to  slay  him  or  rob 
him,  or  take  him  or  detain  hiiTi,  till  he  hath  made  fine  or  ransom  to 
have  his  deliverance,  it  is  not  the  mind  of  the  king  or  his  council, 
that  in  such  case  it  shall  be  judged  treason,  but  shall  be  judged  felony 
or  trespass  according  to  the  law  of  the  land  of  old  time  used,  and  ac- 
cording as  the  case  requireth,  (§'c." 

This  clause  consists  of  two  parts,  the  former,  how  treasons  not 
specially  declared  by  this  statute  shall  for  the  future  be  settled.  2.  It 
declareth,  that  a  particular  offense  therein  mentioned,  that  was  in 
truth  formerly  held  to  be  treason,  shall  not  for  the  future  be  taken  to 
be  so. 

As  to  the  former  of  these  clauses  touching  the  declaring  of  trea- 
sons not  declared  by  this  act,  I  shall  pursue  the  history  thereof  at 
large  in  what  follows,  only  at  present  I  shall  subjoin  these  few  ob- 
servations. 

1.  The  great  wisdom  and  care  of  the  parliament  to  keep  judges 
within  the  bounds  and  express  limits  of  this  act,  and  not  to  suffer 
them  to  run  out  upon  their  own  opinions  into  constructive  treasons, 
iho  in  cases,  that  seem  to  have  a  parity  of  reason  {like  cases  of  trea- 
son) but  reserves  them  to  the  decision  of  parliament:  this  is  a  great 
security,  as  well  as  direction,  to  judges,  and  a  great  safeguard  even 
to  this  sacred  act  itself. 

And  therefore,  as  before  I  observed  in  the  chapter  of  levying  of 
war,  this  clause  of  the  statute  leaves  a  weighty  memento  for  judges 
to  be  careful,  that  they  be  not  over  hasty  in  letting  m  constructive  or 
interpretative  treasons,  not  within  the  letter  of  the  law,  at  least  in 


HISTORIA  PLACITORUM  CORONA.  259 

such  new  cases,  as  have  not  been  formerly  expressly  resolved  and 
settled  by  more  than  one  precedent. 

2.  That  the  authoritative  decision  of  these  casus  omissi  is  reserv- 
ed tothe  king  and  his  parliament,  viz.  the  king  and  both  his  houses 
of  parliament,  and  the  most  regular  and  ordinary  way  is  to  do  it  by 
a  bill  declaratively;  and  therefore  aliho  we  meet  with  some 
declarations  by  the  lords  house  alone  in  some  particular  [  260  ]] 
cases,  as  in  that  of  the  earl  of  Northumberland,  anno  5  H.  4. 
and  that  of  Talbot  17  B.  2.  tho  they  be  decisions  and  judgments  of 
great  weight,  yet  they  are  not  authoritative  declarations  to  serve  this 
act  of  25  E.  3.  but  it  must  be  by  the  king  and  both  houses  of  parlia- 
ment. 

As  to  the  latter  oi  these,  it  has  been  formerly  discussed  in  the 
second  chapter. 

This,  at  common  law,  was  held  treason,  and  the  particular  reason 
of  the  adding  thereof  in  this  place  was,  in  effect,  to  reverse  the  judg- 
ment given  in  B.  R.  P.  2\  E.  3.  Rot.  23.  in  Sir  John  Gorbegge's 
case;(a)  and  touching  this  whole  matter  of  riding  armed,  <5*c.  vide 
qux  dicta  sunt  supra  cap.  14.  p.  135.  (§•  seq. 

Only  the  printed  statute  varies  from  the  parliament-roll  of  25  E.  3. 
p.  2.  n.  17.  for  whereas  it  is  printed  in  the  late  statutes  [covertly  or 
secretly)  the  parliament  roll  is  chivach  arme  descovert  ou  secret- 
ment,  and  accordingly  the  old  written  manuscript  statutes  are  writ- 
ten thus,  chivach  arme  descovert  ou  en  privy  en  le  realm  4"C.,  which 
misprmting  possibly  hath  made  some  mistakes  in  judgments  given  of 
high  treason,  as  if  to  ride  privily  and  covertly  upon  such  a  private 
attempt  were  not  treason;  but  to  ride  discovert,  openly,  were  treason, 
when  in  truth  neither  in  one  case  or  the  other  it  is  treason,  neither  at 
this  day  nor  at  common  law,  if  it  be  only  upon  a  particular  or  pri- 
vate quarrel,  as  in  the  case  of  20  ^.  1.  between  the  earls  of  G/ouces/er 
and  Hereford;[b)  and  this  of  Gerbegge,  tho  it  were  more  guerrino  <§• 
vexillis  explicatis. 

But  now  to  resume  what  is  before  promised,  r;/r.  touching  the  first 
matter,  namely  treasons  not  declared  by  the  statute  of  25  E.  3.  we 
shall  find,  that  between  that  statute  and  1  Mar.  there  were  treasons 
enacted  or  declared  of  these  kinds: 

1.  Such  as  were  simply  declarative  treasons,  or  so  many  exposi- 
tions of  the  statute  of  25.  E.  3. 

2.  There  were  new  treasons,  that  were  simply  enacted,  and  not 
declared  only  that  were  perpetual  in  their  institution,  but  repealed  by 
the  statute  of  1  Marias. 

3.  There  were  new  treasons,  that  seem  only  temporary  or 

fitted  to  the  reigns  of  those  kings,  in  whose  time  they  were  [261  ] 
made. 

4.  There  were  some  treasons,  that  were  perpetual,  but  more  ex- 
plicite  declarations  or  rather  expositions  of  the  statute  of  25  E.  3. 
which  yet  stand  repealed  by  the  statute  of  1  Mar. 

(a)  Videavlea  p.  80^183. 

(6)  Supra  p.  135.  Ryl.  piac.parl.  p.  11. 


261  HISTORIA  PLACITORUM  CORONA. 

And  here  1  must  advise  the  reader  to  take  notice  of  these  cau- 
tions. 

1.  Because  the  hereafter  mentioned  statutes  are  many,  and  con- 
sisting of  divers  clauses,  that  he  rely  not  barely  upon  the  abstracts 
thereof  here  given,  because  possibly  there  may  be  mistakes  or  omis- 
sions in  those  abstracts,  but  peruse  the  statutes  themselves  in  the 
boolfs  at  large. 

2.  That  tho  generally  it  be  a  fair  topical  argument,  that  when 
offenses  are  made  treasons  by  new  and  temporary  acts,  they  were  not 
treasons  within  the  statute  of  25  E.  3,  for  if  they  were,  they  needed 
not  to  have  been  enacted  to  be  treason  by  new  statutes,  as  introduc- 
tive  of  new  laws  in  such  cases;  yet  that  doth  not  hold  universally 
true,  for  some  things  are  enacted  to  be  treason  by  new,  yea  and 
temporary  laws,  which  yet  were  treason  by  the  statute  of  25  E.  3.  as 
will  appear  in  the  sequel. 

And  therefore  the  statutes  of  1  <§-  2  Ph.  <S'  M.  cap.  3.  1  E.  6.  cap. 
12,  23  El.iz.  cap.  2.  making  several  offenses  felony  have  this  wary 
clause,  the  same  not  being  treason  vnthin  the  statute  of  25  E.  3. 

And  hence  it  was,  that  whereas  by  the  statute  of  13  Eliz.  cap.  1. 
compassing  the  queen's  death  and  declaring  the  same  by  writing  or 
printing  is  enacted  to  be  treason  during  the  queen's  life,  but  the 
delinquent  is  by  that  statute  to  be  charged  therewith  within  six 
months,  and  Throckmorton  was  generally  indicted  for  compassing 
the  queen's  death,  and  the  overt-act  was  by  making  a  writing  declar- 
ing convenient  landing  places  for  the  Spanish  forces,  and  the  naming 
of  divers  popish  gentlemen  in  writing,  who  would  be  assistant  to 
that  design,  and  communicating  it  to  the  Spanish  embassador,  and 
Throckmorton  excepted  to  the  proceeding,  because  not  within  six 
months  according  to  the  statute  of  13  Eliz.  that  exception 
[  262  ]  was  overruled,  because  it  was  a  charge  of  treason  and  an 
overt-act  within  the  statute  of  25  E.  3.  which  hath  no  such 
restriction,  and  thereupon  he  was  convict  and  executed.  Camd. 
*dnnals  sub  anno  1584.  p.  298.  and  the  like  was  done  upon  the  like 
exception  in  the  case  of  the  earl  of  Arundel;  quod  vide  Camd. 
Annals  sub  anno  15S9. /?.  426, 

3.  But  where  an  act  of  parliament  made  for  the  safety  of  the  king 
or  queen's  person  or  government  enacts  any  offense  to  be  felony 
only,  or  a  misdemeanor  only  punishable  by  fine  and  imprisonment, 
without  that  wary  clause  above-mentioned,  it  is  a  great  evidence 
and  presumption,  that  the  same  was  not  treason  before,  and  a  judg- 
ment of  parliament  in  point,  for  it  can  never  be  thought,  that  the 
parliament  would  in  such  cases  abate  the  extent  of  25  E.  3,  or  make 
that  less  than  treason,  which  was  treason  by  that  act. 

I  shall  as  near  as  I  can  piu'sue  the  order  above-mentioned,  but 
some  intermixtures  there  will  necessarily  be  of  the  many  particular 
treasons  enacted  by  some  statutes,  some  of  which  were  within  the 
statute  of  25  E.  3,  and  1  shall  follow  those  in  every  succeeding  king's 
reign. 

In  the  time  of  king  Edward  III.  I  find  no  declarations  of  treason 
after  the  statute  of  25  E.  3. 


HISTORIA  PLACITORUM  CORON^E.  262 

Only  I  find  somewhat  like  it  in  the  attainder  of  Thorp  chief  justice 
of  the  king's  bench  for  bribery(c)  and  other  offenses,  who  was  there- 
upon sentenced  to  death,  before  special  commissioners(rf)  assigned 
ad  jifdicandum  secundum  voluntatevi  regis,  in  respect  of  the  oath 
he  had  made  to  the  king  and  broken,  whereby  he  had  bound  himself 
to  that  forfeiture,  *«  ale  encountre  son  serement :  it  is  true  he  had 
judgment,  but  there  was  no  execution  ;  this  judgment  and  the  whole 
proceeding  is  entered  in  patent-roll  of  24  E.  3.  part  3.  m.  3.  dors. 
and  was  afterwards  removed  into  the  lords  house  in  the  parliament 
held  in  oclabis  purijicationis  25  E.  3.  which  was  a  year  before  the 
parliament  held  Wednesday  in  the  feast  of  St.  Hillary  25  E.  3. 
wherein  the  declaration  of  treason  was  made;  and  in  that 
parliament  of  octahis  purijicationis,  n.  10.  the  judgment  [263  3 
was  affirmed  good,  de  puis  qe  se  obligea  mesme  par  son 
serement  a  tiel  pennance,  sil  fait  al  encountre,  &  connusseit,  quil 
av6it  receive  douns  countre  son  dit  serement:  but  with  this  caution 
for  the  future  to  prevent  such  an  arbitrary  course  of  proceeding, 
&  sur  ceo  y  fuit  accord  par  les  grants  de,  mesme  le  parlement,  qe  si 
nul  tiel  case  aueigne  desore  an  evant  de  nul  tiel,  que  nostre  seigneur 
le  roy  prigne  devers  lui  des  grants,  qe  lui  plerra,  &  par  lour  bone 
ayyse  face  outre  ce  qe  plese  a  sa  royal  seignory  ;(e)  but  this  comes 
not  to  our  purpose  concerning  treason. 

As  to  the  time  of  R.  2.  it  was  a  fruitful  time  for  declaring  and 
enhansing  of  treason  in  parliament.  Hot.  Pari.  3  R.  2.  n.  IS.  pars  1. 
the  case  of  Jean  Imperiall(f)  who  was  sent  as  agent  from  the  duke 
and  commonalty  of  Genoa,  and  coming  hither  by  the  king's  safe- 
conduct  was  murdered:  the  inquisition  before  the  coroner  was 
brought  into  parliament,  and  in  pursuance  of  this  clause  of  25  E.  3. 
it  was  declared  by  the  king,  lords,  and  commons,  to  be  treason. 

This  declaration  being  by  the  king  and  both  houses  of  parliament 
was  a  good  declaration  pursuant  to  the  act  of  25  E.  3.  but  is  not  of 
force  at  this  day,  1.  Because  it  was  but  a  particular  case,  and  ex- 
tended not  to  any  other  case,  as  a  binding  law  but  only  as  a  great 
authority.  2.  Because  it  being  not  within  the  express  provision  of 
the  statute  of  25  E.  3.  it  stands  wholly  repealed  as  treason  by  the 
statutes  of  1  E.  6.  and  1  Marix. 

Rot.  Pari.  1  R.  2.  n.  38.  the  judgment  against  Gomeneys  and 
Weston  for  betraying  the  king's  castles  in  France  mentioned  before 
cap.  15.  p.  16S.  where  Weston  had  judgment  to  be  drawn  and  hanged; 
this  judgment  was  given  by  the  lords  at  the  petition  of  the  commons 
in  parliament,  but  makes  not  much  in  the  point  of  declaration  of 
treason,  because,!.  If  done,  as  is  supposed,  by  treachery  and  bribery, 

(c)  He  was  justice  of  assize  in  com''  Lincoln,  and  took  bribes  of  several  to  stay  an  exi- 
gent  upon  an  indictment  for  felony,  that  should  have  issued  against  them. 

(d)  The  earls  of  Arundel,  Warwick,  Sfc. 

(e)  There  is  likewise  a  proviso  added,  that  this  should  not  be  drawn  into  precedent; 
sed  solummodo  versus  eos,  qui  prcedictum  sacramentum  fecerunt  Sf  fregerunt,  Sf  habent 
leges  Angliae  regales  ac  custodiendum. 

(/)  Co.  P.  C.p.  8.  vide  supra  p.  83. 
VOL.  I. — 29 


263  HISTORIA  PLACITORUM  CORON.S:. 

it  was  an  adherence  to  the  king's  enemies.     2.  Being  a  declaration 
or  judgment  only  by  the  lords,  and  not  formally  by  the  king,  lords 
and  commons,  it  is  not  such  a  declaration  of  treason,  as  the 
[  264  ]  act  of  25  E.  3.  requires  in  cases  of  treason  not  thereby  de- 
clared. 

Rot.  Pari.  \\  R.  2.  pars  2.  per  tofum,  the  great  appeal  in  parlia- 
ment by  the  duke  of  Gloucester  and  others  against  the  archbishop 
of  York,  duke  oi  Ireland,  Tresilian,  Uske,  Blake,  Holt,  and  others 
containing  divers  articles,  which  surely  were  not  treason  within  the 
statute  of  25  E.  3.  yet  had  judgment  of  high  treason  given  against 
them  by  the  lords  in  parliament. (i,') 

Upon  the  impeachment  of  the  commons  against  Simon  Burlsy 
Beanchamp,  and  others,  many  of  them  had  likewise  judgment  of 
high  treason  given  against  them  by  the  lords  in  parliament. (*) 

Altho  the  king  did  in  some  kind  outwardly  agree  to  these  judg- 
ments, and  the  commons  were  active  in  it,  and  Rot.  Pari.  11  R.  2. 
pars  L  n.  50.  public  thanks  were  given  to  tlie  king  by  the  lords  and 
commons  in  full  parliament,  de  ceo,  qil  lour  avoit  fait  cy  plein  jus- 
tice, yet  this  was  no  declaration  of  parliament  of  treason  pursuant  to 
the  statute  of  25  E.  3.  because  the  king  and  commons  did  not  consent 
per  rnodum  legis  declarative,  for  the  judgment  was  only  the  lords. 
2.  Because  it  was  but  a  particular  judgment  in  a  particular  case, 
which  was  not  conclusive,  when  the  like  cases  came  before  judges. 

This  parliament  of  11  R.  2.  was  repealed  by  the  parliament  of 
21  R.  2.  and  that  of  21  R.  2.  also  repealed,  and  the  parliament  of 
11  R.  2.  enacted  to  be  holden  according  to  the  purport  and  effect 
of  the  same  by  the  statutes  of  1  H.  4.  cap.  3  &  4.  but  this  did  not 
alter  the  statute  of  11  /?.  2.  and  make  those  judgments,  which  were 
given  by  the  lords  in  11  7?.  2.  of  any  other  value  than  they  were  and 
consequently  amounted  not  to  any  declaration  by  parliament,  that 
these  which  the  lords  adjudged  treasons  in  11  ^.  2.  were  or  ought  to 
be  so  held;  and  if  any  such  construction  might  be  made  upon  the 
confirmation  of  1  H.  4.  cap.  4.  yet  the  same  was  repealed  by  the 
statute  of  1  H.  4.  cap.  10.  in  the  same  parliament;  and  if  not,  yet 
certainly  1  E.  6.  and  1  Mar.  have  wholly  taken  away  the  force  of 
those  declarations,  as  shall  be  shewed. 

Rot.  Pari,  n  R.  2  n.  20.  Talbot^ s  case,  in  conspiring  the 
[[  265  ]  destruction  of  the  dukes  of  Aquitain  and  Gloucester  the 
king's  uncles,  and  other  great  men,  Et  sur  ce  firent  divers 
gents  lever  armies  t^*  array es  a  f aire  guerre  en  assembles  Sc  congre- 
gations in  tres  grand  ^-  horrible  numbre:  this  was  declared  treason 
by  the  lords  in  parliament,  and  a  proclamation  issued  to  render  him- 
self, or  otherwise  to  be  attainted  of  treason:  how  far  this  was  treason 
or  not  within  the  statute  of  25  E.  3.  hath  been  before  considered,  but 
certainly,  if  it  were  no  treason  declared  by  the  particular  purviews 
of  25  E.  3.  it  is  no  such  authoritative  declaration  of  treason  in  par- 
Uament,  as  this  act  requires  in  treasons  not  declared;  and  if  it  were 

ig)  See  Stale  Tr.  Vol.  I.  p.  1.  («)  Ibid.  p.  15. 


HISTORIA  PLACITORUM  CORONiE.  265 

such  an  authoritative  declaration,  it  binds  not  now  as  such,  because 
all  treasons  are  reduced  to  those  expressed  in  the  statute  of  25  E.  3. 
by  the  statutes  of  1  H.  4.  cap.  10.  1  E.  6.  cap.  12.  1  Mar.  cap.  1.  and 
treasons  declared,  as  well  as  new  treasons  enacted,  are  by  these 
statutes  set  aside,  farther  than  the  very  declaration  of  25  E.  3.  ex- 
tends. 

Bof.  Pari.  21  R.  2.  quod  vide  inter  statuta  21  R.  2.  cap.  2,  3,  4, 
12.  some  new  statutes  of  treason  were  enacted,  others  were  declared; 
by  cap.  2.  it  is  enacted,  that  the  procurers  of  any  new  commission 
like  that,  (for  the  obtaining  of  which  the  archbishop  of  Canterbury, 
4'c.  were  in  that  parliament  attainted)  being  convict  in  parliament 
should  be  guilty  of  high  treason:  again,  c«/?.  3.  If  any  be  convict 
in  parliament  of  the  compassing  of  the  king's  death,  or  to  depose 
him,  or  to  render  up  his  homage  to  him,  or  of  raising  war  against 
the  king;  and  cap.  4.  The  procurers  or  counsellors  to  repeal  the 
judgments  given  in  that  parliament,  if  convict  in  parliament,  are 
guilty  of  high  treason:  other  treasons  were  declared,  as  namely  those 
nine  rank  answers  to  the  king's  questions,  which  are  all  recited  and 
afiirmed,  and  adjudged  good  and  sufficient  by  the  12th  chapter  of 
that  parliament;  other  points  were  judged,  as  namely,  that  the  pro- 
curing of  the  commission  for  regulating  the  miscarriages  in  govern- 
ment anno  7  R.  2.  and  the  execution  thereof  by  the  archbishop  of 
Canterbury  and  others  was  high  treason. 

And  tho  it  is  true,  that  some  of  the  points  enacted  to  be 
treason  by  the  3d  chapter  were  in  truth  treasons  by  the  f  266  1 
statute  of  25  E.  3.  if  here  were  an  overt-act,  namely  com- 
passing the  death  or  deposing  the  king,  or  levying  war,  yet  these 
statutes  and  these  declarations  by  the  parliament  of  21  R.  2.  are 
■wholly  set  aside;  and  the  statute  of  25  E.  3  governs  the  whole  mat- 
ter of  high  treason,  notwithstanding  any  of  theextensions,  enactings, 
or  declarations  of  the  parliament  of  21  R.  2.  or  any  of  the  judges 
therein-mentioned,  viz.  Belknap,  Tresilian,  Holt,  Fulthorp,  Burgly, 
Thirlinge,  Bikhill,  and  Clapton,  for  the  parliament  of  21  J?.  2.  is 
wholly  repealed  by  1.  H.  4.  cap.  3.  S,-  4.  and  the  parliament  of 
11  R.2.  wherein  Belknap  and  Tresilian  were  judged  traitors  for 
delivering  those  extravagant  opinions(A)  is  revived  and  affirmed; 
and  also  by  the  statutes  of  1  E.  6.  and  1  Mar.  the  treasons  enacted 
or  newly  declared  by  the  parliaments  q>{  \\  Sf  2\  R.2.  are  repealed. 

And  tho  those  opinions  of  the  judges  Tresilian,  Thirlinge  and 
the  rest  had  the  countenance  of  the  parliament  of  21  R.  2.  yet  they 
had  the  discountenance  of  the  parliament  of  11  iff.  2.  and  1  //.  4. 
which  repealed  the  parliament  of  21  R.  2.  and  stand  at  this  day 
unrepealed  in  their  full  strength,  excepting  only  such  treasons  as 
were  newly  made,  or  newly  declared  by  those  parliaments:  tho  the 
statutes  of  1  E.  6.  and  1  Mar.  have  taken  away  those  treasons, 
which  either  the  statute  of  11  ^.  2.  or  1  H.  4.  had  introduced  more 
than  were  in  the  statute  of  25  E.  3.  yet  it  hath  not  taken  away  the 

(A)  Co.  P.  C.  p.  22. 


266  HISTORIA  PLACITORUM  CORONA. 

efficacy  of  the  parliaments  of  11  7?.  2.  and  3  H.  4.  as  to  their  decla- 
rations, that  the  extrajudicial  opinions  of  those  judges  were  false 
and  erroneous;  but  in  that  respect  the  parliaments  of  1  H.  4.  and 
11  7?.  2.  are  of  force,  as  to  the  damning  of  those  extravagant  and 
unwarrantable  opinions  and  declarations. 

I  come  now  to  the  time  of  Henry  IV.  wherein  I  find  little:  in 
anno  primo  in  parliament  inter  Placila  Coronse,  John  Hall  wdiS 
convict  before  the  lords  in  parliament  of  the  murder  of  the  duke  of 
Gloucester,  and  judgment  given  by  the  \oxAs  per  assent  dn  ray,  that 
altho  it  were  only  murder,  yet  the  offender  should  have  the  judg- 
ment of  high  treason,  viz.  to  be  drawn,  hanged,  embovvelled, 
[  267  ]  his  bowels  burnt,  his  head  cut  off,  and  quartered,  and  his 
head  sent  to  Cnlice,  where  the  murder  was  committed, 
which  was  executed  by  the  marshal  accordingly:  this  was  no  decla- 
ration of  treason,  but  a  transcendent  punishment  of  the  murder  of  so 
eminent  a  person. 

1  H.  4.  cap.  10.  "  It  is  accorded,  that  in  no  time  to  come  any 
treason  be  judged  otherwise  than  it  was  ordained  by  the  statute  of 
king  Edward  III,"  Tliis  at  once  swept  away  all  the  extravagant 
treasons  introduced  in  the  time  of  R.  2.  either  in  over  much  favour 
of  popularity,  or  over  much  flattery  to  prerogative,  for  they  were  of 
both  sorts. 

Rot.  Pari.  5  H.  4.  n.  12.  There  is  a  declaration  of  an  acquittal 
of  the  earl  of  Northumberland  from  treason;  quod  vide  antea 
cap.  14.  p.  136.  but  I  find  no  declaration  nor  act  of  new  treason,  in 
the  time  of  H  4.  he  was  as  good  as  his  promise  by  the  act  of  1  H.  4. 
cap.  10.  for  he  contented  himself  with  the  declaration  made  by 
25  E.  3. 

In  the  time  of  H  5. 

By  the  statute  of  2  H.  5.  cap.  6.  "  It  is  ordained  and  declared 
that  manslanghter,  robbery,  spoiling,  breaking  of  truce,  and  safe- 
conducts,  and  voluntary  receipt,  abetment,  procurement,  concealing, 
hiring,  sustaining,  and  maintainitig  of  such  persons  to  be  done  in 
time  to  come  by  any  of  the  king's  subjects  within  England,  Ireland, 
or  PVales,  or  upon  the  main  sea  shall  be  judged  and  determined 
treason  done  against  the  king's  crown  and  dignity  ;  and  the  conser- 
vator of  the  truce  to  have  power  by  the  king's  commission  and  by 
the  commission  of  the  admiral  to  inquire  thereof:"  But  this  statute 
as  to  treason  is  particularly  repealed  by  the  statute  of  20  H  6.  cup.  11. 
but  whether  the  general  statutes  of  1  E.  6.  cap.  12.  1  Mar.  cap.  1. 
had  repealed  it  as  to  treasons  done  upon  the  sea  may  be  a  question, 
because  it  hath  been  ruled,  that  those  statutes  extend  not  as  to  trials 
of  treason  done  upon  the  sea  by  the  statute  of  28  H.  8.  cap.  1,5.  de 
quo  infra. 

The  statute  of  3  H.  5.  cap  6  S,-  7.  it  is  true,  is  a  declarative  law, 

that  clipping,  washing  and  filing  the  king's  coin  is  treason  within 

the  statute  of  25  E.  3.  and  judges  of  assise  and  justices  of 

[  268  1  peace  have  cognisance  thereof;  but  even  this  declarative 


HISTORIA  PLACITORUM  CORONA.  268 

law  is  repealed  by  the  statute  of  1  Mar.  as  it  is  declared  in  the 
statute  of  5.  Eliz.  de  quo  an  tea. 

As  to  the  judgment  of  treason  given  in  Sir  John  Oldcaslle^s  case 
Rot.  Pari.  5  H.  5.  par.  1.  n.  U.  tho  the  judgment  be  given  in  par- 
liament, yet  it  is  barely  upon  the  account  of  compassing  the  king's 
death,  and  of  levying  of  war,  which  was  expressly  within  the  statute 
of  25.  E.  3.  as  appears  before,  cap.  14.  p.  142. 

Touching  the  times  of  H.  6. 

Rot.  Pari.  2.  H.  6.  n.  18.  It  appears,  that  John  Mortimer  was 
committed  for  suspicion  of  treason  against  H.  5.  and  23  Feb.  2  i/.  6. 
brake  prison,  and  escaped,  for  which  he  was  indicted  25  Feb.  2  H.  6. 
at  GuHdhall,  London,  before  commissioners  o{  oyer  and  terminer 
setting  forth  the  matter,  and  that  prisonam prxdictam,  falso  8^-  volun- 
tarie /regit;  the  record  by  the  king's  command  was  sent  into  parlia- 
ment, and  by  the  king's  commissioner  ad  tenendum  parliament iim^ 
and  the  lords  at  the  request  of  the  commons,  it  was  affirmed  a  good, 
indictment,  and  Mortimer  liad  judgment  to  be  drawn,  hanged,  and 
quartered,  and  his  lands  and  goods  forfeited  to  the  king  by  the  judg- 
ment of  the  lieutenant,  lords,  and  commons,  by  an  act  made  then  for 
that  purpose. 

This  it  is  true  was  an  authoritative  declaration  of  treason  in  this 
particular  case  pursuant  to  the  clause  of  the  statute  of  25  E.  3. 

But  it  rested  not  here,  for  in  the  same  parliament,  n.  60.  a  general 
statute  passed,  "Que  si  ascun  person  soite  indite, appelle  ou  prise  par 
suspicion  de  grand  treason  and  pur  cest  cause  soit  commisse  &  detenus 
in  prison  &  escape  volunterement  hors  du  dit  prison,  que  tiel  escape 
soit  adjudge  and  declare  treason,  si  tiel  person  ent  soit  duement  attaint 
selon  la  ley  de  terre.  Et  eient  les  seigneurs  de  fee  en  tiel  cas  les 
eschetes  and  forfeitures  de  terres  &  tenements  de  eux  tenus  par  tiel 
persons  issint  attaints,  come  de  ceux,  que  sont  attaints  de  petit  trea- 
son; Et  teigne  cest  estatute  lieu  &  effect  del  20  'our  de  Octobre  dar- 
rein passe  tanque  al  prochein  parliament. 

"  Ro'.  Soit  fait,  come  est  desyre  par  la  petition.". 

This  parliament  began  20  Oct.  2.  H.  6.  [  269  ] 

The  tilings  observable  hereupon  are  these,  1.  That  to 
rescue  a  person,  that  is  a  traitor,  out  of  prison  was  treason  at  com- 
mon law,  and  so  continues  at  this  day  within  the  statute  of  25  E.  3. 
2  Co.  Instil,  p.  589.  and  1  H.  6.  5.  b.  2.  But  if  a  man  committed 
for  treason  breaks  prison  and  escapes,  this  is  not  treason  at  common 
law.  ■  3.  Tho  it  be  felony  by  the  statute  de  frangentibus prisonam, 
yet  it  is  not  made  treason  by  that  statute.  4.  But  if  it  were  treason 
by  that  statute,  yet  it  is  corrected  and  made  not  treason  by  the  statute 
of  25  E.  3.  and  1  H.A.  and  therefore  in  this  case  it  was  made  treason 
merely  by  the  judgment  of  parliament,  and  statute  of  2  H.  6,  was  but 
temporary  and  expired  by  the  next  parliament.  5.  That  the  judg- 
ment itself  in  Mortimer'' s  case,  tho  an  authoritative  declaration,  was 
not  at  all  binding  in  other  cases  for  two  reasons,  1.  Because  it  is 
checked  and  controled  as  to  any  such  effect  by  the  general  act  of  par- 
liament of  2  //.  6.  which  was  to  continue  only  to  the  next  parlia- 


269  HISTORY  PLACITORUM  CORONA. 

ment;  and  2.  Because  it  was  but  a  particular  judgment  of  parlia- 
ment in  that  particular  case,  to  wliich  it  was  particularly  applied. 

But  howsoever,  that  question  is  now  put  out  of  question  by  the 
general  act  of  1  Mar.  cap.  1.  which  enervates  the  force  of  this  judg- 
ment and  declaration;  for  1  A/«r.  repeals  declarative  laws  of  treasons 
as  well  as  enacting  laws,  and  leaves  the  judges  to  judge  strictly  ac- 
cording to  the  statute  of  25  E.  3.  as  if  no  such  judgment  had  been 
given  in  parliament.  2  Co.  Instit.  p.  589.  and  therefore  it  seems 
strange  to  me,  that  the  judges  took  any  notice  of  2  H.  6.  in  Bensted's 
case  to  ground  any  opinion  ou.{i) 

And  therefore,  aUho  in  the  late  act  of  attainder  of  the  earl  of  Straf- 
ford, there  was  a  proviso  added,  that  it  should  not  be  construed,  that 
the  treasons  therein  cFiarged  should  be  a  rule  for  judges  to  proceed 
by,  in  other  cases,  it  seems  a  cautious  but  needless  proviso, 
[7    0]  because  it  was  a  particular  judgment,  that  did  not  egredi 
personam,  and    no    general   declarative  law   to  serve    the 
statute  of  25  E.  3.     For  there  may  be  collateral  reasons  not  only  in 
policy,  but  in  justice  sometimes  for  a  parliament  to  vary  the  punish- 
ment of  crimes,  in  substance  the  same,  when  differenced  by  circum- 
stances, in  several  persons. 

8  H.  6.  cap.  6.  Burning  of  houses  maliciously  or  wickedly  to  ex- 
tort sums  of  money  from  those,  whom  the  malefactors  spare,  is  made 
high  treason  with  a  retrospect  to  the  first  year  of  the  king's  reign, 
saving  to  the  lords  their  liberties,  as  in  case  of  felony. 

Two  things  are  observable  upon  this  act,  1.  That  had  it  not  been 
specially  provided  against,  the  lords  had  lost  their  eschetes  by  mak- 
ing it  treason.  2.  That  this  act,  tho  perpetual  in  its  constitution,  yet 
was  repealed  by  1  Mar.  cap.  1.  and  alter  that  repeal  it  remained 
felony,  as  it  was  before,  and  so  continues  to  this  day. 

Rot.  Pari.  11  H.  %.  n.  43.  A  petition  that  John  Carpenter,  who 
had  committed  a  barbarous  murder  upon  his  wife,  for  wliich  he  was 
outlawed  and  in  prison  in  the  king's  bench,  might  for  example's  sake 
by  authority  of  parliament  be  judged  a  traitor,  and  that  the  judges 
might  give  judgment  against  him  to  be  drawn  and  hanged,  saving  to 
the  lords  their  eschetes.  Ro'.  Pur  ceo,  quil  semble  encountre  le 
liberty  de  seint  esglis  le  roy  se  avisera. 

20  H.  6.  cap.  3.  Thecomingof  people  out  of  fFa/e*  or  the  marches 
of  the  same  into  the  counties  adjacent,  and  taking  and  driving  away 
cattle,  and  their  abettors  and  receivers  knowing  thereof,  is  made 
treason  against  the  king,  saving  to  the  lords  marchers,  of  whom  the 
offenders,  receivers,  or  abetters  held  their  lands,  the  forfeiture  thereof 
and  of  their  goods  and  chatties,  when  attainted  ;  this  act  was  to  con- 
ti'nue  for  six  years :  nota,  the  lords  had  lost  their  eschetes  and  for- 

(i)  Cro.  Car.  563.  Janes  455.  It  was  tlie  case  in  1  //.  6.  5.  h.  and  not  the  statute  of 
2  //.  6.  on  vvliicli  the  jiulfres  {rrouiidcd  their  opinion,  altlio  as  tliat  opinion  is  exprcst  in 
Cro.  Car.  583.  and  KeL  77.  viz.  that  the  breaking  of  a  prison,  wherein  traitors  be,  is  high 
treason,  tho  the  parties  did  not  know,  that  there  were  traitors  there,  is  not  warranted  by' 
that  case,  which  is  of  one,  who  brake  prison,  knoiving  certain  persons  to  be  j^i'isoners  in 
the  said  prison  for  treason. 


HISTORIA  PLACITORUM  CORONvE.  270 

feiture  of  the  offenders  goods,  if  it  had  not  been  specially  provided 
for,  because  made  treason  and  a  new  treason,  which  was  not  before, 
for  the  lords  marchers  had  not  only  forfeiture  of  goods  of  felons,  but 
royal  eschetes  and  forfeiture  of  traitors  goods  for  the  most 
part;  but  that  franchise,  which  was  by  prescription,  could  [271  ] 
not  extend  to  new  treasons. 

I  find  nothing  more  relating  to  this  matter  in  the  time  of  Henry 
VI. 

The  impeachment  of  the  duke  of  Suffolk  by  the  commons  for 
treasons  and  misdemeanors  contained  many  articles  of  high  treason 
wiihin  the  statute  of  25  E.  3.  namely,  adhering  to  the  king's  ene- 
mies; but  the  whole  matter  being  at  last  left  to  the  king,  he  was 
declared  by  the  king  clear  of  the  treasons,  and  for  the  rest  the  king 
by  a  kind  of  composition  ordered  liim  to  be  banished  for  five  years. 
Rot.  Pari.  28  H.  6  n.  18,  19,  20,  S^-c. 

As  to  the  reigns  of  Edward  IV.  and  Richard  III.  tho  in  those 
great  revolutions,  that  happened  in  the  latter  end  of  Henry  VI.  the 
beginning  of  Edward  IV.  the  time  of  Richard  III.  there  are  many 
acts  of  attainder  of  treason  of  particular  persons,  that  adhered  to 
either  party  then  contending  for  the  crown,  according  as  the  success 
of  war  fell  to  one  side  or  the  other,  as  namely  Rot.  Pari.  38  H.  6. 
n.  1. — 36,  &,-c.  many  of  the  duke  of  York's  party  were  attainted  of 
treason  by  act  of  parliament.  Rot.  Pari.  1  E.  4.  n.  6. — 15,  <§'C.  the 
numerous  companies  of  the  party  of  Henry  VI.  were  attainted  by 
parliament;  the  like  was  done  in  the  short  regress  of  H.  Q.  11  E.  4. 
in  a  parliament  held  in  that  short  resumption  of  the  crown  by  Henry 
VI.  Again,  the  like  was  done  in  the  parliament  of  12  E.  4.  upoti 
the  regress  and  re-expulsion  of  Henry  VI.  Again,  Rot.  Pari, 
1  R.  3.  divers  persons  of  great  quality,  that  opposed  the  pretensions  of 
Richard  III.  were  attainted  by  act  of  parliament;  and  the  like  was 
again  done  in  the  parliament  of  1  H.  7.  against  the  assistants  of 
Richard  III.  Every  new  revolution  occasioned  the  attainder  by 
parliament  of  the  most  considerable  of  the  adverse  party ;  yet  in  all 
this  time  I  find  no  general  declaration  or  general  enacting  of  new 
treasons  by  parliament. 

I  come  to  the  time  of  Henry  VII. 

In  this  time  I  find  but  one  new  treason,  namely  the  statute  of  4  H. 
7.  cap.  IS.  whereby  the  counterfeiting  of  foreign  coin  made  current 
in  this  realm  is  made  high  treason.    . 

But  this  act  was  repealed  by  the  statute  of  1  E.  6.  cap.  12. 
and  1  Mar.  cap.  1.  and  another  act  made  to  the  same  pur-  [  272  ~\ 
pose  in  1  Mar.  sess.  2.  cap.  6. 

This  wise  prince  duly  considering  the  various  revolutions,  that  had 
formerly  happened  in  this  kingdom  touching  the  crown  especially  to 
the  houses  of  Fork  and  Lancaster,  and  that  every  success  of  any 
party  presently  subjected  all  that  opposed  the  conqueror,  to  the  pen- 
alties of  treason ;  and  weighing  that,  altho  by  his  marriage  with 
the  heir  of  the  house  of  York,  he  had  reasonably  well  secured  his  pos- 
session of  the  crown,  yet  otherwise  his  title,  as  in  his  own  right,  was 


272  HISTORIA  PLACITORUM  CORONA. 

not  without  some  difficulties;  he  therefore  made  a  law,  not  to  enact 
treason,  but  to  give  some  security  against  it,  viz.  11  //.  7.  cap.  L 
"  That  all  persons,  that  attend  upon  the  king  and  sovereign  lord  of 
this  land  for  the  time  being  in  his  person,  and  do  him  true  and  faith- 
ful service  of  alligeance  in  the  same,  or  be  in  other  places  by  his 
commandment  in  the  wars  within  this  land  or  v/ithout,  that  for  the 
said  deed  and  true  duty  of  alligeance  he  or  they  shall  be  in  no  wise 
convict  or  attaint  of  high  treason,  nor  of  other  otfenses  for  that  cause 
by  act  of  parliament,  or  otherwise  by  any  process  of  law,  whereby 
he  or  any  of  them  shall  now  forfeit  life,  lands,  tenements,  rents^  pos- 
sessions, hereditaments,  goods,  chatties,  or  any  other  thing,  but  be  for 
that  service  utterly  discharged  of  any  vexation,  trouble,  or  loss;  and 
if  any  act  or  acts,  or  other  process  of  law  hereafter  thereupon  for  the 
same  happen  to  be  made  contrary  to  this  ordinance,  that  then  that 
act  or  acts  or  other  process  of  law  whatsoever  they  be,  stand  and  be 
utterly  void;  provided  always,  that  no  .person  or  persons  shall  take 
any  benefit  or  advantage  by  this  act,  which  shall  hereafter  decline 
from  his  or  their  said  alligeance."  Upon  this  act  these  things  are 
observable. 

1.  That  this  act  was  not  temporary  or  for  the  life  of  king  Henri/ 
VII.  but  was  perpetual,  and  extended  to  all  succeeding  kings  and 
queens  of  this  realm,  for  it  is  for  attendants  upon  the  king  or  sove- 
reign lord  of  this  land  for  the  tirne  being. 

2.  It  is  observable,  that  this  act  extendeth  to  a  king  de 
[  273  ]  facto,  tho  not  de  Jure,  for  in  truth  such  was  Henri/  VII.  for 
his  wife  was  the  right  heir  to  the  crown,  and  his  regal 
power  was  principally  by  an  act  of  parliament  made  1  H.  7.  before 
his  intermarriage  with  his  queen,  tho  both  titles  were  derived  to  his 
descendants,  viz.  Henry  VIII.  and  in  default  of  issue,  to  his  sister, 
from  whom  our  present  sovereign  is  descended :  and  this  act,  tho 
extended  to  his  successors,  which  were  kings  de  jure,  as  well  as  de 
facto,  yet  was  made  for  the  security  of  himself  and  his  servants  in 
the  first  place,  which  appeareth  more  fully  also  by  the  preamble. 

3.  That  tho  this  act  might  secure  the  attendants  on  the  king  in  his 
wars  against  impeachments  in  an  ordinary  course  of  law,  and  might, 
as  to  this  purpose,  exempt  them  from  the  danger  of  any  treason  by 
the  statute  of  25  E.  3.  as  adherers  to  the  king's  enemies,  yet  it  was 
a  vain  provision  against  future  acts  of  parliament,  whose  hands 
could  not  be  bound  by  a  former  act  from  repealing  it,  or  taking  away 
the  effect  thereof  in  part  or  in  all. 

It  is  true,  since  that  time  this  kingdom  hath  had  no  great  experi- 
ence of  changes  of  this  nature,  nor  need  to  make  use  of  the  advan- 
tage of  this  statute:  it  is  true  queen  Mary  began  her  reign  6  July, 
1553,  she  was  crowned  6  Octob.  following,  her  first  session  of  parlia- 
ment began  5  Octob.  1553.  which  was  the  day  before  her  coronation, 
and  the  second  session  thereof  was  held  by  prorogation  24  Octob, 
1  Mar. 

Upon  that  6th  of  July,  which  was  the  day  of  king  Edward^s 
death,  and  before  queen  Mary  was  actually  settled,  the  lady  JanQ 


HISTORIA  PLACITORUM  CORONiE.  273 

Gray  set  up  a  title  for  herself,  and  continued  in  some  kind  of  regal 
power,  until  the  1st  of  Jlugust  following,  and  during  those  twenty- 
four  days  the  styles  of  deeds,  statutes  and  other  things  (and  possibly 
also  processes)  were  made  in  her  name,  and  a  special  act  was  made 
1  Mar.  sess.  2  cap.  4.  to  make  them  effectual,  and  to  be  pleadable  in 
the  style,  name,  and  year  of  queen  Mary ;  so  that  the  lady  Jane 
seemed  an  intruder  for  about  twenty-four  days;  but  the  truth  is, she 
was  not  so  much  as  an  usurper,  or  a  queen  de  facto:  and 
these  her  assistants  in  that  business,  viz.  the  archbishop  of  [  274  ] 
Canterbury,  the  duke  of  Northitmberland,  the  said  lady 
Jane  and  divers  others  were  attainted  before  commissioners  of  oyer 
and  terminer  ;  and  those  attainders  confirmed  by  parliament  I  Mar. 
sess.  2.  cap.  16.  and  note  in  that  act  of  attainder  a  special  proviso, 
that  the  possessions  of  the  archbishopriek  of  Canterbury  should  not 
he  forfeited  by  that  attainder  or  act  of  parliament;  possibly  they 
thought  that  the  general  words  of  that  act,  or  at  least  the  statutes  of 
26  H.  8.  and  33  H.  8.  which  gave  forfeitures  for  treason  against 
successors,  and  were  not  repealed  by  1  Mar.  might  otherwise  have 
forfeited  the  lands  of  the  archbishopriek  by  the  attainder  of  the  arch- 
bisop;  but  of  this  supra  cap.  23.  p.  252. 

4.  But  what  was  the  meaning  of  the  proviso  in  that  act  of  11  H. 
7.  "  That  no  pei-sons  shall  have  the  benefit  of  this  act  who  shall 
decline  from  his  alligeance,"  is  dark  and  dubious. 

But  these  questions  never  failed  to  be  soon  decided  on  the  victor's 
part  by  their  parliaments,  which  were  always  obsequious  enough  in 
these  matters  to  the  victor,  and  ready  to  pass  acts  of  attainders  for 
his  safety  and  their  own,  against  which  no  security  was,  nor  could 
be  given  by  this  act  of  11  //.  7. 

I  come  now  to  the  reign  of  Henry  VIII.  which  was  a  reign 
wherein  acts  concerning  treason  were  exceedingly  multiplied,  and 
they  are  of  three  kinds:  1.  Such  acts,  as  constituted  or  declared 
treason.  2.  Such  acts,  as  concerned  the  trial  of  treason.  3,  Such 
as  concerned  the  punishment  or  forfeiture  of  treason. 

By  the  statute  of  22  H.  8.  cap.  9.  Ricfiard  Rose  for  wilful  poison- 
ing of  dingers  persons  is  by  authority  of  parliament  attainted  of  high 
treason,  and  that  he  be  boiled  to  death:  and  by  authority  of  parlia- 
ment murder  by  wilful  poisoning  is  made  treason  for  the  future,  and 
the  offender  to  be  boiled  to  death,  and  not  to  have  benefit  of  the 
clergy:  justices  of  peace  to  have  power  to  inquire  of  this  offense, 
and  also  of  counterfeiting  coin  of  any  foreign  kingdom,  suffered  to 
be  current  here,  the  title  of  lords  to  eschete  of  the  lands  of  offenders 
in  poisoning  is  saved  to  them  (A-) 

This  treason  is  repealed  by  1  Mar.  cap.  1.  and  the  same  [275] 
remains  felony  as  before. 

By  26  H.  cap.  13.  "  Maliciously  to  wish,  will,  or  desire  by  words 
or  writing,  or  by  craft  to  imagine,  invent,  practise,  or  attempt  any 
bodily  harm  to  the  king,  queen,  or  their  heirs  apparent,  to  deprive 

Qi)  Co.  P.  C.  p.  48, 


275  HISTORIA  PLACITORUM  CORONiE. 

them,  ov  any  of  them  of  their  dignity,  title,  or  name,  or  slanderously, 
or  riialicionsly  to  publish  by  express  writing,  or  words,  that  the  king 
our  sovereign  lord  is  an  heretic,  schismatic,  tyrant,  infidel,  or 
usurper,  or  rebelliously  to  detain  any  of  his  castles,  &c.  in  this  realm, 
or  other  his  dominions,  or  rebelliously  to  detain  or  keep  any  of  liis 
ships,  ammunition,  or  artillery,  and  do  not  humbly  render  the  said 
casiles,  fortresses,  ships,  or  artillery,  to  our  sovereign  lord,  his  heirs 
or  successors,  or  such  as  shall  be  deputed  by  them,  within  six  days 
after  they  be  commanded  thereunto  by  proclamation  under  the  great 
seat,  is  enacted  to  be  treason  in  the  offenders,  their  aiders,  counsellors, 
consenters  and  abetters:  foreign  treason  to  be  tried  in  any  connty, 
where  the  king  shall  appoint  by  commission," 

1.  It  should  seem,  that  this  act  was  intended  to  be  perpetual,  for 
in  it  and  the  subsequent  clause  of  forfeitures  it  mentions  the  king,  his 
heirs  and  successors.  2.  Part  of  this  seems  to  be  treason  by  the  sta- 
tute of  25  E.  3.  viz.  the  practising  any  bodily  harm,  if  there  be  an 
overt-act,  and  also  the  rebellious  detaining  of  the  king's  castles  after 
summons  by  proclamation;  the  rest  are  purely  new  treasons.  3.  But 
whether  it  was  temporary  or  perpetual,  all  treason  resting  singly,  as 
enacted  by  authority  of  this  act,  is  repealed  by  1  E.  6.  and  1  Mar. 
and  yet  the  latter  clause(/)  concerning  .forfeiture  in  relation  to  all 
treasons  within  25.  E.  3.  stands  unrepealed;  de  quo  vide  supra  4' 
infra. 

By  27  H.  8.  cap.  2.  counterfeiting  privy  seal,  privy  signet,  or  sign 
manual  is  made  treason,  and  the  offenders,  their  counsellors,  aiders, 
and  abetters  to  suffer  and  forfeit, as  in  case  of  treason;  this  is  repealed 
by  1  Mar.  cap.  1.  and  then  re-enacted  by  1  Mar.  cap.  6. 

By  25H.  8.  cap.  22.  the  divorce  between  the  king  and  queen 
[276  3  C'<7//j«r//ie  is  affirmed  by  parliament,  and  also  the  marriage 
between  him  andr^nne  Bullen,  and  the  crown  with  all  dig- 
nities, honours,  pre-eminences,  prerogatives,  authorities,  and  juris- 
dictions to  the  same  annext  or  belonging,  is  entailed  after  the  king's 
death  to  the  heirs  of  his  body  lawfully  begotten,  viz.  to  the  first, 
second,  and  other  sons  of  the  king  and  of  the  said  queen  Jlnne,  and 
to  the  heirs  of  their  bodies  successively;  and  for  want  of  s«ch  issue 
male,  to  the  heirs  male  of  the  king,  and  the  heirs  of  their  several 
bodies;  and  for  want  of  such  issue,  to  the  lady  Elizabeth,  their 
daughter  and  the  heirs  of  her  body,  and  so  to  their  second,  third  and 
other  daughters;  and  for  want  of  such  issue,  to  the  king's  right  heirs. 

"  If  any  by  writing,  printing,  or  exterior  act  maliciously  do  or 
procure  any  thing  to  the  peril  of  the  king's  person,  or  to  the  disturb- 
ance of  the  king's  enjoyment  of  the  crown,  or  to  the  prejudice  or 
derogation  of  the  marriage  between  him  and  queen  Anne,  or  to  the 
peril,  slander,  or  disherison  of  any  of  the  issues  or  heirs  made  by  this 
act  inheritable  to  the  crown,  it  shall  be  high  treason. 

"  If  any  bywords  without  writing,  <5'C.  maliciously  publish  any 

{I)  By  this  laUer  clause  the  offender,  S^c.  sliall  forfeit  to  the  kingf,  his  heirs  and  succes- 
Bors  all  hinds,  tencnicnts,  and  iicreditaaicnts  of  any  estate  of  inheritance  in  use  or  pos- 
session, by  any  right,  title,  or  means. 


HISTORIA  PLACITORUM  CORONA.  276 

thing  to  the  slander  of  the  said  marriage  between  the  king  and  queen 
Anne,  or  to  the  slander  or  disherison  of  the  issues  of  the  king's  body 
begotten  on  the  said  queen  Anne,  or  other  heirs  inheritable  to  the 
crown,  by  virtue  of  this  act,  it  shall  be  misprision  of  treason  :"  an 
oath  is  appointed  to  be  taken  in  pursuance  hereof,  and  the  refusers 
are  guilty  of  misprision  of  treason;  provision  is  made  for  the  custody 
of  the  heir  of  the  crown  during  minority. 

28  H.  8.  cap.  7.  the  last  act  is  repealed,  and  all  intermediate  of- 
fenses against  that  act  in  relation  to  queen  Anne  or  the  lady  Eliza- 
beth pardoned;  <\\\Q%wAnne  and  others  attainted  of  treason;  the  mar- 
riage between  the  king  and  queen  Catharine  annulled  and  judged 
void,  and  the  issues  between  them  to  be  illegitimate;  the  marriage 
between  the  king  and  queen  ./^«;?e  judged  void  by  sentence  of  divorce 
of  the  archbishop;  the  Same  sentence  confirmed,  and  the  marriage 
with  queen  Anne  judged  and  declared  null  and  void,  and  tlie  issues 
between  them  declared  illegitimate  and  excluded  from  inhe- 
riting the  crown:  Levitical  degrees  settled.  Children  be-  [277] 
tween  the  king  and  queen  Jane  shall  be  adjudged  the  king's 
lawful  children,  and  inheritable  to  the  crown;  the  crown  entailed  to 
king  Henry  VIII.  and  the  heirs  of  his  body  lawfully  begotten,  that 
is  to  say,  to  the  first,  second,.and  other  sons  of  the  king  on  the  body 
of  queen  Jane  begotten,  and  the  heirs  of  their  bodies  severally;  and 
in  default  of  such  issue  male,  then  to  the  first  son  and  heir  male  of 
his  body,  and  so  to  the  second  and  other  sons  in  tail;  and  for  the 
want  thereof,  to  the  first  and  other  issue  female  between  the  king  and 
queen  Jane  in  tail;  and  for  want  of  such  issue,  to  the  king's  first  and 
other  issue  female  in  tail;  and  for  lack  of  issue  of  the  king's  body,  to 
such  person,  and  in  such  manner  as  he  shall  appoint  by  his  last  will 
or  letters  patent ;  provision  against  disturbances  of  the  heir  of  his  body 
so  nominated  under  pain  of  treason;  "And  if  any  shall  by  words, 
writing,  printing,  or  other  exterior  act  directly  or  indirectly  do  or 
procure  maliciously  any  thing  to  the  peril  of  the  person  of  the  king, 
his  heirs  or  successors  having  the  royal  estate  of  the  crown,  or  ma- 
Uciously  or  willingly  by  words,  c^-c.  give  occasion,  whereby  the  king, 
his  heirs  or  successors  might  be  interrupted  of  the  crown,  or  for  the 
interruption,  repeal  or  adnullation  of  this  act,  or  the  king's  disposal 
of  the  crown  according  to  it,  or  to  the  slander,  disturbance,  or  dero- 
gation of  the  marriage  between  the  king  and  queen  Jane,  or  any 
other  lawful  wife,  which  he  shall  hereafter  marry,  or  to  the  peril, 
slander,  or  disherison  of  any  of  the  issues  and  heirs  of  the  king  limited 
to  be  inheritable  to  the  crown,  or  to  whom  the  king  shall  by  autho- 
rity of  this  act  dispose  it,  or  that  affirm,  c^'C.  the  marriage  between 
the  king  and  queen  Catharine,  or  between  the  king  and  queen  Anne 
to  be  good,  or  slander  the  sentences  of  divorce  above  said,  or  publish 
their  issues  to  be  the  king's  lawful  children,  or  shall  attempt  to  de- 
prive the  king,  the  queen,  or  any  made  inheritable  to  the  crown  by 
this  act,  or  to  whom  the  king  by  authority  of  this  act  shall  dispose 
thereof,  of  their  titles,  styles,  names,  degrees,  or  royal  estate 
or  regal  power,  or  refuse  to  take  an  oath  to  answer  such  [  278  ~\ 
questions,  as  shall  be  objected  to  them  upon  any  clause  of 


278  HISTORIA  PLACITORUM  CORON.^. 

this  act,  or  after  taking  the  oath  do  contemptuously  refuse  to  answer 
such  interrogatories,  as  shall  be  objected  concerning  the  same,  or 
shall  refuse  to  take  the  oath  enjoined  by  this  act,  they,  their  aiders, 
counsellors,  maintainers  and  abetters  shall  be  guilty  of  treason,  and 
forfeit  all  their  lands,  S,'C.  and  all  sanctuary  excluded." 

The  form  of  the  oath  is  set  down  in  the  act,  and  power  is  given  to 
the  king  by  will  to  dispose  of  the  custody  of  the  king's  issue  within 
age. 

It  is  made  treason  to  disturb  such  disposal,  and  also  power  is  given 
to  the  king  to  dispose  or  give  by  will,  (§'C.  to  any  of  his  blood  any 
title,  style,  name,  honors,  tenements,  or  hereditaments. 

No/a,  This  act  doubted  whether  the  attempting  any  thing  in  par- 
liament against  the  marriage  of  queen  Jinne  might  not  bring  them 
in  danger  of  the  act  of  25  H.  8.  and  therefore  took  care  both  to 
repeal  the  act,  and  to  discharge  and  pardon  what  had  been  attempted 
against  it. 

The  clause  enabling  the  king  to  dispose  of  any  honours  or  lands 
to  those  of  his  blood  by  will  was  necessary,  for  without  such  an 
enabling  act  of  parliament  the  king  could  not  dispose  thereof  by  will, 
but  only  by  letters  patent  under  the  great  seal,  or  for  lands  parcel 
of  the  duchy  o{  Lancaster  under  the  seal  of  the  duchy. 

But  it  seems,  that  as  to  the  disposal  of  lands  belonging  to  the 
crown  or  duchy  by  letters  patent  under  these  respective  seals,  the 
king  had  power  without  this  act,  or  the  35  H.  8.  cap.  1.  to  dispose 
thereof,  and  to  bind  his  successors. 

And  this  by  reason  of  the  special  penning  of  those  acts,  which,  as 
I  think,  did  not  entail  the  lands,  that  the  king  had  in  jure  coronss 
or  injure  diicatus  Lancastrise,  but  only  limits  the  succession  of  the 
crown  and  of  the  dignities,  honors,  prerogatives,  pre-eminences, 
authorities,  or  jurisdictions  to  the  same  annext  or  belonging,  which 
are  but  so  many  expressions  of  the  parts  or  incidents  of  the  regal 
dignity,  and  not  of  the  lands  or  possessions  of  the  crown,  but  those 
rested  in  the  crown  in  fee-simple,  as  they  were  before  those  acts 
made. 

And  hence  it  is,  that  in  the  several  acts  of  34  H.  S.  cap. 
[279  ]  21.  1  £?.  6.  cap.  8.  18  Eliz.  cap.  2.  35  Eliz.  cap.  3.  43 
Eliz.  cap.  1.  for  confirmation  of  letters  patent,  there  is  no' 
clause  to  make  them  good,  notwithstanding  the  entail  of  the  crown, 
for  it  was  not  needful;  but  the  lands  granted  by  king  Henri/  VIII. 
Ediuard  VI.  queen  Mary.,  queen  Elizabeth,  stand  eflectual  without 
any  such  confirmation,  and  yet  the  entail  of  the  crown  by  these  acts 
continued  till  the  death  of  queen  Elizabeth,  at  which  time  it  was 
spent,  and  king  James  succeeded  to  the  crown  as  the  true  heir 
thereof,  without  the  help  of  any  entail  or  nomination  by  Henry  VIII. 

And  yet  after  all  this  the  whole  scheme  was  altered  by  the  statute 
of  35  H.  8.  cap.  1.  for  thereby  after  recital  of  the  statute  of  28  H.  8 
and  that  the  king  had  issue  by  queen  Jane  prince  Edward,  and  the 
king  had  since  married  the  lady  Catharine ;  It  is  enacted,  "That  if 
the  king  and  prince  Edward  die  without  heirs  of  either  of  their 


HISTORIA  PLACITORUM  CORONiE.  279 

bodies,  the  crown  shall  remain  to  the  lady  Mary  and  the  heirs  of 
her  body  under  such  conditions,  as  shall  be  limited  by  the  king  by 
his  letters  patent,  or  his  last  will;  and  for  want  of  such  issue,  or 
upon  breach  of  such  conditions,  to  the  lady  Elizabeth  and  the  heirs 
of  her  body  under  such  conditions,  as  shall  be  limited  by  the  king 
by  his  last  will  or  letters  patent;  and  in  default  of  such  issue,  or 
upon  breach  of  such  conditions,  to  such  persons  and  ibr  such  estates, 
as  the  king  shall  limit  by  his  will  or  letters  patent. 

This  act  repeals  the  former  oath  of  28  H.  8.  and  directs  the  form 
of  a  new  oath  to  be  taken  for  the  extirpation  of  the  pope's  pretended 
supremacy,. and  limits  it  to  be  taken  by  all  that  sue  livery,  have  any 
office  of  the  king's  gift,  receive  orders,  take  degrees,  and  by  all  per- 
sons whom  the  king,  (§'C.  shall  appoint,  and  that  it  shall  be  treason  in 
such,  who  obstinately  refuse  to  take  the  oath. 

It  is  also  enacted,  "That  if  any  person  by  words,  writing,  printing, 
or  exterior  act  maliciously  or  willingly  do  or  procure  any  thing 
directly  or  indirectly  for  the  repeal,  annullation  or  interruption  of  this 
act,  or  any  thing  therein  contained,  or  of  any  thing  that  shall 
be  done  by  the  king  in  the  limitation  of  the  crown  to  be  [280] 
made  as  aforesaid,  or  to  the  peril,  disherison  or  slander  of 
any  of  the  issues  and  heirs  of  the  king  being  limited  by  this  act  to 
inherit  and  to  be  inheritable  to  the  crown,  or  to  the  disherison  or  in- 
terruption of  any  person,  to  whom  the  crown  is  by  this  act,  or  shall 
be  limited  by  the  king  as  aforesaid,  whereby  they  may  be  destroyed 
or  interrupted  in  body  or  title  of  the  inheritance  of  the  crown,  the 
same  shall  be  high  treason  in  the  offenders,  their  maintainers,  aiders, 
counsellors,  and  abetters,  saving  to  all  persons,  other  than  the  par- 
ties attainted,  their  heirs  and  successors,  all  rights,  S^c.  in  the  lands  of 
the  persons  attaint." 

And  note,  that  notwithstanding  the  caution  used  in  the  act  of 
28  H.  8.  for  the  pardon  of  the  attempting  to  repeal  the  act  of  25  H.  8. 
no  such  care  was  thought  necessary  here  for  the  attempt  or  procure- 
ment to  alter  the  law  by  act  of  parliament;  for  as  it  could  not  be 
restrained  by  a  precedent  act,  so  neither  was  it  concerned  within  the 
penalty. 

And  thus  much  for  those  treasons,  that  related  to  the  succession  of 
the  crown,  which  I  have  put  together,  notwithstanding  many  of  them 
come  after  those  other  acts,  which  I  shall  hereafter  mention. [1] 

[1]  Of  the  statutes  of  treason  passed  in  the  reigfn  of  Henry  8,  Hume  says,  they  were 
multiplied  beyond  all  former  precedent.  Even  words  to  the  disparagement  of  the  king, 
queen,  or  royal  issue,  were  subjected  to  that  penalty;  and  so  little  care  was  taken  in 
framing  those  rigorous  statutes  that  tiiey  contain  obvious  contradiclions;  insomuch  that 
had  they  been  strictly  executed,  every  man  without  exception  must  have  fallen  under  the 
penalty  of  treason.  By  one  statute,  for  instance,  it  was  declared  treason  to  assert  the 
validity  of  the  king's  marriage,  either  with  Catherine  of  Arragon,  or  Anne  Bolyn ;  by  an- 
other, it  was  treason  to  say  any  thing  to  the  disparagement  or  slander  of  the  princesses 
Mary  and  Elizabelh;  and  to  call  them  spurious,  would  no  doubt  have  been  construed  to 
their  slander.  Nor  would  even  a  profound  silence  with  regard  to  these  delicate  points  be 
able  to  save  a  person  from  such  penalties.  For  by  the  former  statute,  whoever  refused  to 
answer  upon  oath  to  any  point  contained  in  that  act  was  subjected  to  the  pains  of  treason. 
The  king  therefore,  needed  only  propose  to  any  one  a  question  with  regard  to  the  legality 


280  HISTORIA  PLACITORUM  CORONA. 

By  the  28  H.  2.  cap.  10.  which  was  the  great  concluding  act  against 
the  papal  authority,  the  asserting  or  maintaining  of  the  papal  autho- 
rity is  brought  within  the  statute  of  prsemttnire,  and  he  that  obsti- 
nately refuseth  the  taking  of  the  oath  of  abjuration  thereby  enacted, 
is  subjected  to  the  penalty  of  high  treason. 

By  28  H.  8.  cap.  IS.  marrying  any  of  the  king's  children  or  re- 
puted children,  or  his  sisters,  or  aunts  of  the  father's  part,  or  the 
children  of  the  king's  brethren,  or  sisters  without  the  king's  license 
under  his  great  seal,  or  deflowering  of  any  of  them,  is  enacted  to  be 
treason. 

By  31  H.  8.  cap.  8,  the  king  and  council's  proclamation  concern- 
ing religion  or  other  matters  are  to  be  obeyed  under  such  penalties, 
as  they  shall  think  requisite;  they,  that  disobey  them  and  then  go 
beyond  sea  contemptuously  to  avoid  answering  such  offense, 
["281  ]   shall  be  guilty  of  treason,  <§'c.  saving  to  every  person,  other 
than  the  offenders,  their  heirs  and  successors,  all  right,  S,^c. 

By  32  H.  8.  cap.  25.  the  marriage  between  the  king  and  hdy  ^/inne 
Cleve,  which  had  been  dissolved  by  the  sentence  of  convocation,  was 
confirmed  by  parliament,  with  liberty  for  each  party  to  marry  else- 
where: if  any  by  writing,  printing,  or  exterior  act,  word,  or  deed, 
accept,  take,  judge,  or  believe  the  said  marriage  to  be  good,  or 
attempt  any  thing  for  the  repeal  or  adnuUation  of  this  act,  it  shall  be 
high  treason  in  them,  their  aiders,  counsellors,  abetters,  or  maintam- 
ers,  saving  the  rights  of  all,  other  than  the  oflenders,  their  heirs  and 
successors;  and  all  persons  that  have  acted  against  the  said  marriage 
are  pardoned. 

By  33  H.  8.  cap.  21.  Queen  Catharine  Howard  was  attainted  of 
high  treason,  and  all  persons  that  had  acted  against  her  were  pardon- 
ed :  any  woman,  whom  the  king  or  his  successors  shall  intend  to  take 
to  wife,  thinking  her  a  pure  and  clean  maid,  if  she  be  not  so,  and 
shall  willingly  couple  herself  in  marriage  to  the  king  notwithstanding, 
without  discovering  it  to  the  king  before  marriage,  shall  be  guilty  of 
high  treason;  and  if  any  other  know  it  and  reveal  it  not,  it  shall  be 
misprision  of  treason:  the  queen  or  prince's  wife  soUiciting  any  per- 
son to  have  carnal  knowledge  of  her,  or  any  person  solliciting  the 
queen  or  prince's  wife  to  have  carnal  knowledge  of  her,  is  treason  in 
them  respectively,  their  counsellors,  aiders  and  abetters. 

By  35  //.  8.  cap.  3.  The  king's  style  (Henricus  octaviis  Dei  gratia 
Angliffi,  Francia)  &  Hiberniec  rex,Jidei  defensor,  4'  in  terra  ecclesias 
Anglicaiise  &  IliberniaB  supremum,  caput)  is  united  and  annexed  to 
the  imperial  crown  of  England;  and  if  any  shall  imagine  to  deprive 
the  king,  queen,  prince,  or  the  heirs  of  the  king's  body,  or  any  to 
whom  the  crown  is  or  shall  be  limited,  of  any  of  their  titles,  styles, 
names,  degrees,  royal  estate,  or  regal  power  annext  to  the  crown  uf 

of  cither  of  his  first  rnarriagres;  if  the  person  was  silent,  he  was  a  traitor  by  law;  if  he  an- 
swered either  in  the  ncg-alivc  or  in  tlic  affirmative,  he  was  no  less  a  traitor.  So  mon- 
strous were  the  inconsistencies  which  arose  from  the  furious  passions  of  the  king,  and  the 
slavish  submission  ofliis  parliaments.     Hisl.  Engl.  vol.  Y.p.  G40. 


HISTORIA  PLACITORUM  CORON.^.  281 

England,  it  shall  be  high  treason,  saving  the  right  of  all  other  than 
the  offenders,  their  heirs  and  successors. 

And  thus  far  concerning  the  Several  treasons  enacted  in  [  282] 
this  king's  time,  all  which  are  nevertheless  now  abrogated 
and  repealed  by  1  E.  6.  and  1  Mar.  as  shall  be  shewn. 

II.  There  are  several  acts  of  parliament  in  this  king's  time,  which 
concern  trials  of  treason,  some  of  which  are  in  force  at  this  day,  and 
not  repealed  by  any  statute. 

By  26  H.  8.  cap.  6.  The  treason  concerning  counterfeiting,  wash- 
ing, clipping  and  minishing  of  money  current  within  this  realm,  as 
likewise  other  felonies  committed  in  Wales  or  the  marches  thereof, 
may  be  heard  and  determined  before  justices  of  goal-delivery  in  the 
next  English  county;  but  note,  this  extends  not  to  other  treasons, 
nor,  at  this  day,  to  clipping  or  minishing  the  coin  ;  for  the  acts,  that 
made  them  treason  at  that  time,  viz.  3  H.  5.  and  4  H.  7.  stand  now 
repealed,  and  the  statutes  of  5  Eliz.  cap.  11.  for  clipping,  and 
18  E/iz.  cap.  1.  for  minishing  the  coin,  direct  it  to  be  tried  by  the 
course  and  order  of  the  law;  and  so  it  is  also  for  counterfeiting  of 
foreign  coin  by  the  statute  of  1  Mar.  yea,  and  as  to  counterfeiting 
the  coin  of  this  kingdom,  or  any  other  offense  touching  coin,  by  the 
statute  of  1  <^'  2  F.  €>'  M.  cap.  11.  the  indictment  and  trial  is  directed 
to  be  according  to  the  course  of  the  common  law;  so  that  as  to  coin 
also  the  statute  of  26  H.  8.  is  now  out  of  doors. 

28  H.  8.  cap.  15.  For  trial  of  treason  committed  upon  the  high 
sea  before  the  admiral,  8j-c.  by  commission  under  the  great  seal ;  this 
statute. as  to  trial  of  treason  upon  the  sea  stands  unrepealed  by 
1  Mar.  and  whether  as  to  treasons  committed  in  any  rivers,  or 
ports,  or  creeks  within  the  bodies  of  counties,  it  be  not  repealed  by 
1  4-  2  P.  (§•  M.  cap.  10.  or  by  the  statute  of  35  H.  8.  cap.  2.  for  trial 
of  foreign  treasons,  is  considerable. 

By  32  H.  8.  cap.  4.  Treasons  and  misprisions  of  treason  committed 
in  Wales,  ox  in  other  places  where  the  king's  writ  doth  not  run,  shall 
be  tried  before  such  commissioners  of  oyer  and  terminer,  as  tlie  king 
shall  appoint,  as  if  committed  in  the  same  counties  into  which  the 
commission  is  directed. 

This  is  repealed  by  the  statute  of  1  4'  2  P.  ^-  M.  cap.  10. 
cited  to  be  so  adjudged  in  H.  14  Eliz.{vi)  Co.  P.  C.p.  24.  [283] 
because  it  is  done  within  this  realm,  and  so  may  be  tried  in 
Wales. 

33  H.  8.  cap.  20.  Concerning  the  proceeding  touching  the  enquiry 
and  trial  of  treason  committed  by  persons,  that  become  lunatic  after 
the  treason  committed,  without  putting  them  to  answer,  and  touch- 
ing the  execution  of  persons  attainted  of  treason,  and  afterwards 
becoming  lunatic,  is  repealed  by  the  stattUe  of  1  4'  2  P.  (5*  M.  cap. 
10.  vide  Co.  P.  C.p.  4  4'  6.  both  as  to  the  indictment  and  as  to  the 
trial;  but  the  forfeiture  of  persons  attainted  of  treason,  as  to  old 
treasons,  stands  in  force. 

(jn)  Lord  Lumley^s  case. 


283  HISTORIA  PLACITORUM  CORONA. 

33  H.  8.  cap.  23.  Treason  or  misprision  of  treason  or  murder  com- 
mitted by  a  person  examined  before  three  of  the  council,  and  found 
by  them  guihy,  or  suspected,  may  be  enquired  of,  heard  and  deter- 
mined before  commissioners  of  oyer  and  terminer  in  any  county  of 
England  to  be  named  by  the  king,  by  jurors  of  the  county  in  such 
commission :  challenge  for  lack  of  forty  shillings  freehold  allowed 
peremptory  challenge  is  ousted  in  treason  or  misprision  of  treason: 
trial  by  peers  is  saved. 

This  statute  as  to  the  indictment  and  trial  of  treason  in  any 
foreign  county  stands  repealed  by  1  <§•  2  P.  Sr  M.  cap.  10.  as  was 
ruled  by  all  the  judges  of  England'm  Som  ervil  I e's  case,  M.  26  EUz. 
reported  by  justice  Clench  n.  17. (n)  against  the  opinion  of  Stam- 
ford, PI.  Cor.  Lib.  II.  cap.  26.  both  as  to  the  indictment  and  also  as 
to  the  trial,  for  Somerville  was  indicted  in  the  county  where  the 
offense  was,  and  by  a  commission  in  Middlesex  was  tried  by  a  jury 
of  the  county,  where  the  offense  was  committed ;  but  as  to  murder, 
it  seems  to  stand  unrepealed,  and  accordingly  put  in  ure;  Cramp- 
ton's  jUs{[ce.{o) 

35  //.  8.  cap.  2.  Treasons,  misprisions  and  concealments  of  trea- 
sons committed  out  of  the  realm  shall  be  heard  and  determined  by 
the  court  of  king's  bench,  and  tried  by  a  jury  of  that  county,  where 
the  court  sits,  or  before  commissioners  and  in  such  shire,  where  the 
king  shall  appoint  by  his  commission,  by  good  and  lawful 
[_  284  2  f^sn  of  the  same  shire,  as  if  committed  in  the  same  shire: 
trial  of  a  nobleman  by  his  peers  is  saved. 

Upon  this  statute  these  points  have  been  resolved :  1.  That  this 
act  is  not  repealed  by  1  E.  6.  or  1  S,' 2  P.  S,^  M.  cap.  10.  thus  it  was 
resolved  in  Orurk's  case,  Co.  P.  C.  p.  24.  2.  It  extends  to  a  trea- 
son committed  in  Ireland,  xesoXvadi  in  Sir  John  PerroVs  case,(/)) 
Co.  P.  C.p.  11.  3.  It  extends  to  a  treason  committed  in  Ireland, 
by  a  peer  of  Ireland,  so  resolved  in  22  Car.  1.  in  B.  R.  in  Mac- 
guire's  case. (9)  4.  The  commission  in  this  act  mentioned  may  be 
signed  by  the  king's  sign  manual,  or  the  warrant  to  the  chancellor 
to  issue  the  commission  may  be  signed  by  the  king's  sign  manual, 
and  either  of  them  is  warranted  by  this  statute,  so  resolved  H. 
36  Eliz.  cited  Co.  Pla.  Cor.  p.  11.  in  the  case  of  Patrick  Ocullen. 
5.  If  an  indictment  be  taken  by  virtue  of  this  statute  in  the  county 
of  Middlesex,  and  then  the  bench  is  remaved  by  adjournment  into 
another  county,  if  the  prisoner  pleads  not  guilty,  it  shall  be  tried  by 
a  jury  of  that  county  where  the  indictment  is  taken,  because  the 
words  are,  that  it  shall  be  inquired,  heard  and  determined  by 
good  and  lawful  men  of  the  same  county,  luhere  the  said  bench 
shall  sit.  M.  35  4'  36  EUz.  B.  R.  in  the  case  of  Francis  Dacres 
cited  Co.  PI.  Cor.  p.  34.  but  otherwise  upon  an  indictment  upon  the 
statute  of  5  EUz.  cap.  1.  for  refusing  the  oath  of  supremacy.  Co.  PL 
Cor.  ibidem. {r) 

(n)  This  is  reported  1.  And  p.  104.  {p)  State  Tr.  Vol.  I.  p.  181. 

(0)  p.  22.  lord  Grevil's  case.  {q)  State  Tr.  Vol.  I.  p.  928. 

(r)  Tlic  case  of  Edmund  Bonner,  Bishop  of  London. 


HISTORIA  PLACITORUM  CORONA.  284 

III.  As  touching  the  third  point  of  forfeitures  by  treason  I  shall 
say  little  more,  than  what  is  said  before  in  the  preceding  chapter  con- 
cerning the  forfeiture  of  tenant  in  tail. 

Only  it  seems,  that  the  law  was  taken  upon  the  statutes  of  33  and 
36  H.  8.  before  mentioned,  that  if  an  abbot  or  a  bishop  were  attaint- 
ed of  treason,  that  by  force  of  the  general  words  o{  forfeiting  all 
their  lands,  tenements  and  hereditaments  they  forfeit  the  lands  of 
their  church,  tho  they  had  them  in  autre  droit. 

1.  Because  in  the  savings  of  these  statutes,  yea  and  in  all  the  new 
statutes  of  treason  made  in  the  time  of  Henry  VIII.  above- 
mentioned,  the  saving  ywns,  saving  to  all  persons  other  than  [  285  ] 
the  offenders,  their  heirs  and  successors  such  right,  ^-c.  and 

the  exception  of  successors  makes  it  probable,  that  they  intended, 
when  a  sole  corporation  was  attainted  of  treason,  he  should  forfeit 
the  lands  of  his  church. 

2.  Because  in  the  act  of  attainder  of  the  archbishop  of  Canter- 
bury, 1  Mar.  cap.  16.  there  is  a  special  proviso,  that  it  should  not 
extend  to  the  lands  which  he  had  in  right  of  his  archbishoprick ;  but 
that  these  should  be  saved,  as  if  he  had  not  been  attainted. 

3.  Because  by  the  act  of  31  i^.  8.  cap.  13.  it  appears  plainly,  that 
the  possessions  of  Monasteries,  where  the  abbots  were  attainted  of 
treason,  came  thereby  to  the  crown,  tho  they  are  not  annexed  to  the 
court  of  augmentations  of  the  king's  revenues. 

4.  It  is  clearly  admitted  by  the  judges  in  the  case  of  the  Bishop  of 
Durham,  By.  289.  that  by  force  of  the  statute  of  26  H.  8.  the  lands 
of  abbeys,  &c.  came  to  the  crown  by  the  attainder  of  treason  of  the 
abbots,  &c.  and  possibly  it  was  in  design  at  the  time  of  the  making 
of  that  statute. 

But  it  is  true,  that  before  that  statute  of  26  H.  8.  1.  The  lands, 
which  a  person  had  in  right  of  his  church,  were  not  forfeited  by 
attainder  of  treason.  2.  That  altho  the  lands  of  a  sole  corporation 
such  as  were  an  abbot,  prior,  bishop,  might  be  forfeited  by  attainder 
by  the  special  penning  of  26  and  33  H.  S.  yet  the  lands  of  an  aggre- 
gate corporation,  as  dean  and  chapter,  mayor  and  commonalty,  were 
not  forfeited  by  the  treason  of  the  dean,  or  mayor,  by  virtue  of  those 
statutes,  for  the  right  of  the  land  was  in  the  commonalty  and  chap- 
ter, as  well  as  in  the  dean  or  mayor,  and  not  in  them  alone.  3.  That 
at  this  day  the  attainder  of  treason  doth  not  forfeit  the  lands  of  a 
bishop,  parson  or  other  sole  ecclesiastical  corporation:  1.  Because 
the  statutes  of  1  Eliz.{s)  and  13  Eliz.  cap.  \0.{t)  disabling  bishops, 
masters  of  hospitals,  &c.  to  alien  their  possessions,  disable  them  to 
forfeit  as  well  as  alien,  or  otherwise  the  statute  would  be  illu- 
sory. 2.  By  the  special  penning  of  the  statutes  of  E.  6. 
cap.  12.  and  1  Mar.  whereby  it  is  enacted,  that  no  penal-  [  286  ] 
ties  shall  be  inflicted  for  treason,  other  than  such  as  be  by 
25  E.  3. 

(s)  This  is  not  among  the  printed  statutes. 
(t)  Ttiis  statute  made  perpetual  by  3  Cur.  1.  cap.  4. 
VOL.  I. 30 


286  HISTORIA  PLACITORUM  CORON.E. 

Concerning  the  forfeiture  of  lands  in  a  county  palatine  by  the 
attainder  of  treason  out  of  a  county  palatine,  or  e  converso. 

By  the  statutes  of  9  H.  5.  cap.  2.  18  ff.  6.  cap.  13.  20  H.  6.  cap.  2. 
31  H.  6.  cap.  6.  outlawries  of  treason,  &c.  in  the  county  palatine  of 
Lancaster  were  not  to  cause  a  disability  of  the  person  outlawed,  nor 
induce  any  forfeiture  of  the  lands  or  goods  of  the  party  outlawed 
lying  out  of  that  county  ;  but  by  the  statute  of  33  H.  6.  cap.  2.  these 
acts  are  repealed,  and  it  is  ordained,  that  the  indicters  in  a  county 
palatine  (where  the  indictment  supposes  any  person  to  be  inhabiting 
out  of  the  county  of  Lancaster  within  some  other  county  of  the 
realm)  have  lands  to  the  yearly  value  of  five  pounds  in  that  county, 
and  that  upon  indictment  to  be  taken  out  of  the  county  palatine  of 
persons  residing  there,  the  indicters  shall  have  a  yearly  freehold  of 
five  pounds,  and  that  no  process  be  made  out  upon  any  such  indict- 
ments, till  it  has  been  examined  by  the  king's  justices,  whether  the 
indicters  be  so  qualified. 

J3ut  now  by  the  statute  of  27  H.  8.  cap.  24.  all  powers  in  county 
palatines  for  making  of  justices  in  eyre,  of  assise,  of  peace,  of  goal- 
delivery,  are  resumed,  and  such  commissions  are  to  pass  under  the 
great  seal  of  England,  only  in  Lancaster  they  are  to  be  under  the 
usual  seal  of  Lancaster :  all  processes  to  be  in  the  king's  name  under 
the  teste  of  him,  that  hath  the  county  palatine;  all  indictments,  ^"c. 
are  to  conclude  contra  pacem  regis,  and  all  fines  and  amerciaments 
upon  officers  are  resumed:  so  that  now  all  process  of  outlawry, 
attainder,  <5'c.  in  county  palatines  are  of  the  same  efl'ect  and  induce 
the  san^ie  forfeitures,  as  if  the  offenses  were  committed,  tried  and 
determined  in  any  other  county  of  England. 

Bnt  this  alters  not  the  title  of  the  bishop  o(  Durham  or  any  other, 
that  had  royal  forfeitures  of  treasons  of  lands  within  their  liberty,* 
or  county  palatine,  for  that  is  a  distinct  franchise,  and  not  at  all 
touched  by  the  act  of  resumption,  as  appears  by  the  case  in  Dijer{u) 
before  cited,  and  by  what  is  said  in  the  precedent  chapter 
[|  287  ]  touching  forfeitures  by  treason:  and  thus  far  for  acts  touch- 
ing treason  in  the  time  of  Henry  VIII. 

As  touching  treasons  in  the  verge  1  shall  particularly  mention  the 
same  hereafter. 

1  come  now  to  the  time  of  king  Edward  VI. 

1  E.  6.  cap.  12.  There  are  these  several  changes  made  by  these 
several  clauses. 

1.  It  is  enacted,  that  no  act,  deed  or  ofl'ense  being  by  statute  made 
treason  or  [)etit  treason  bywords,  writing,  cyphering,  deeds  or  other- 
wise whatsoever,  shall  be  deemed  or  adjudged  high  treason  or  petit 
treasons  but  only  such  as  be  treasons  or  petit  treasons  in  or  by  the 
statute  of  25  E.  3.  for  declaring  treasOa,  and  such  ofiences,  as  here- 
after by  this  act  are  expressed  and  declared  to  be  treason  or  petit 
treason  ;  and  no  other  penalties  to  be  inflicted  upon  the  offenders  in 
treason  or  petit  treason,  but  what  are  ordained  by  that,  or  this 
statute. 

(m)  Dyer  289. 


HISTORIA  PLACITORUM  CORONA.  287 

2cl  clause  repeals  the  statutes  concerning  heretics,  Lollards,  tjie 
six  articles,  selling  of  books  of  the  scriptures,  ^-c.  ordained  in  the 
time  of  R.  2.  H.  5  and  H.  8. 

3d  clause  repeals  all  felonies  made  by  act  of  parliament,  since  23 
Jlpril  1  H.  8.  that  were  not  felonies  before,  and  all  penalties  touch- 
ing the  same. 

4th  clause  repeals  the  act  of  31  H.  8.  touching  obedience  to  the 
king's  proclamations,  and  the  statute  of  34  H.  8.  imposing  penalties 
upon  the  disobedient. 

5th  clause  enacts  certain  new  offenses,  viz.  "If  any  shall  by 
preaching,  express  words  or  sayings  athrm  and  set  forth  that  the 
king,  his  heirs  or  successors,  kings  of  this  realm,  is  not  or  ought  not 
to  be  supreme  head  on  earth  of  the  church  of  England  2ind  Ireland 
immediately  under  God,  or  that  the  bisliop  of  Rome,  or  any  besides 
the  king  for  the  time  being,  ought  by  the  laws  of  God  to  be  supreme 
head  of  the  same  churches,  or  that  the  king,  his  heirs  or  successors, 
kings  of  this  realm,  ought  not  to  be  king  of  England,  France,  and 
Ireland,  ox  any  of  them,  or  do  compass  by  open  preaching,  express 
words  or  sayings  to  depose  or  deprive  the  king,  his  heirs  or  suc- 
cessors kings  of  this  realm,  from  his  royal  estate  or  titles  to 
the  same  kingdoms,  or  do  openly  publish,  or  say  by  express  [^  288  ] 
words  or  sayings,  that  any  person,  other  than  the  king,  his 
heirs  or  successors  kings  of  this  realm,  of  right  ought  to  be  king  of 
the  realms  aforesaid,  or  any  of  them,  or  to  have  or  enjoy  the  same 
or  any  of  them,  the  offenders,  their  counsellors,  aiders,  abettors,  pro- 
curers and  comforters,  for  the  first  offense  shall  lose  his  goods,  and 
suffer  imprisonment  during  the  king's  pleasure;  and  if  after  such 
conviction  he  shall  commit  the  same  offense  again,  other  than  such 
as  be  expressed  in  the  statute  of  25  E.  3.  he  shall  forfeit  to  the  king 
the  profits  of  his  lands,  benefices,  and  ecclesiastical  promotions  during 
his  life,  and  all  his  goods,  and  suffer  perpetual  imprisonment;  and 
for  the  third  offense  after  a  second  conviction,  he  shall  be  guilty  of 
treason,  and  suffer  and  forfeit  as  a  traitor. 

6th  clause  enacts  that,  "  If  any  person  shall  by  writing,  printing, 
overt-act  or  deed,  affirm  or  set  forth,  that  the  king  of  this  realm  for 
the  time  being,  is  not  or  ought  not  to  be  supreme  head  on  earth  of 
the  churches  of  England  and  Ireland,  or  any  of  them  immediately 
under  God,  or  that  the  bishop  oi  Rome  or  any  person,  than  the  king 
of  England  for  the  time  being,  is  or  ought  to  be  supreme  head  on 
earth  of  the  same  churches  or  any  of  them,  or  do  compass  or  ima- 
gine by  writing,  printing,  overt-deed  or  act  to  depose  or  deprive  the 
king,  his  heirs  or  successors  from  the  royal  estate  or  titles  of  king  of 
England,  France  and  Ireland,  or  any  of  them,  or  by  writing, 
printing,  overt-act  or  deed,  do  affirm,  that  any  person,  other  than  the 
king,  his  heirs  and  successors,  of  right  ought  to  be  king  of  the  realms 
of  England,  France  and  Ireland,  or  any  of  them,  then  every  such 
offender  shall  be  guilty  of  treason,  and  suffer  and  forfeit,  as  in  case 
of  high  treason. 

7th  clause  enacts, "That  this  act  shall  not  extend  to  repeal  any 


288  HISTORIA  PLACITORUM  CORONA. 

statutes  touching  the  counterfeiting,  clipping,  filing  or  washing  the 
coin  current  of  this  kingdom,  or  importing  counterfeit  coin,  or  coun- 
terfeiting the  king's  sign  manual,  privy  seal,  or  privy  signet,  their 
abettors,  &c. 

8th  clause  enacts,  "That  if  the  persons  declared  by  the  act  of  35 
H.  8.  to  be  inheritable  to  the  crown  do  usurp  one  upon  the 
[289  ]  other,  or  interrupt  the  king's  possession  of  the  crown,  they, 
their  abettors,  &c.  shall  be  traitors. 

9th  clause  takes  away  clergy  from  persons  found  guilty  by  verdict, 
confession,  or  not  directly  answering  or  standing  mute  in  cases  of 
murder  of  malice  prepense,  of  wilful  poisoning,  house-breaking,  any 
person  being  in  the  house  and  put  in  fear,  robbing  in  or  near  the 
highway,  horse-stealing,  sacrilege ;  but  in  all  other  cases  of  felony 
clergy  allowed,  and  sanctuary  the  same  as  before  the  24  April 
1  ^.8. 

10th  clause  provides,  that  all  the  statutes  of  H.  8.  concerning  chal- 
lenge, or  concerning  trial  of  foreign  pleas,  shall  stand  in  force. 

1  Ith  clause  declares,  that  no  person  already  arrested  or  imprisoned, 
indicted  or  convicted,  or  outlawed  for  treason,  petty  treason  or  mis- 
prision of  treason,  shall  have  any  advantage  of  this  act. 

12th  clause  provides,  that  wilful  killing  by  poison  shall  be  deemed 
wilful  murder,  and  the  offenders,  their  aiders,  abettors,  counsellors  or 
procurers  shall  suffer,  as  murderers. 

13th  clause  enacts,  that  a  lord  of  parliament  in  all  cases  within  the 
benefit  of  clergy,  tho  he  cannot  read,  yet  shall  be  delivered  as  a  clerk 
convict  without  burning  in  the  hand,  or  loss  of  lands,  &c. 

14th  clause  saves  the  trial  by  peers  for  any  offenses  within  this 
statute. 

15th  clause  enacts,  that  clergy  be  allowed,  notwithstanding  the 
offender  have  been  married  to  a  single  woman  or  widow,  or  to  two 
wives  or  more. 

16th  clause  enacts,  that  notwithstanding  attainder  of  treason,  petit 
treason,  misprision  of  treason,  murder  or  felony,  the  wife  shall  have 
her  dower,  and  saves  to  all  and  every  person,  other  than  to  the 
offender  attained,  convict  or  outlawed,  all  such  right,  title,  interest, 
entry,  leases,  possession,  condition,  "profit,  commodity,  and  heredita- 
ments, as  they  had  before  or  at  the  time  of  the  attainder,  conviction, 
or  outlawry. 

17th  clause  provides,  that  the  statute  of  27  H.  8.  for  felony  in  ser- 
vants stealing  the  goods  of  their  masters,  shall  stand  in  force. 

IStli  clause  provides,  that  no  person  be  put  to  answer  for 
[  290  ~\  any  of  the  offenses  abovesaid  concerning  treason  by  preach- 
ing or  words  only,  unless  accused  before  one  of  the  king's 
council,  justice  of  assise  or  peace,  &c.  within  thirty  days  after  the 
offense  committed. 

19ih  clause,  concealing  and  keeping  secret  any  high  treason  shall 
be  misprision  of  treason,  and  the  offender  shall  forfeit  as  iieretofore 
hath  been  used  in  case  of  misprision  of  treason. 


HISTORIA  PLACITORUM  CORONiE.  090 

20th  clause,  calling,  writing  or  printing  the  French  king  king  of 
France  shall  not  be  adjudged  any  oftense  within  this  act. 

21st  clause  provides,  that  no  person  shall  be  indicted,  arraigned, 
condemned  or  convicted  for  any  offense  of  treason,  petit  treason, 
misprision  of  treason,  or  for  any  words  before  mentioned,  whereby 
he  shall  sulfer  pains  of  death,  loss  of  goods,  imprisonment,  &c.  unless 
the  otTender  be  accused  by  two  sufficient  and  lawful  witnesses,  or 
shall  willingly  without  violence  confess  the  same. 

I  have  mentioned  the  clauses  of  this  statute  at  large,  and  by  their 
numbers,  because  there  be  many  things  observable  thereupon. 

By  the  first  clause  of  this  statute  all  those  numerous  treasons  and 
petit  treasons,  that  were  enacted  or  declared  at  any  time  since  25 
E.  3.  are  wholly  taken  away,  except  that  of  counterfeiting,  clipping, 
washing,  or  filing  of  coin,  &c.  excepted  in  the  7th  clause  ;  but  this 
doth  not  mention  misprisions  of  treason,  but  only  declares  what  mis- 
prision of  treason  is,  for  by  taking  away  the  treasons  themselves,  the 
misprisions  of  those  treasons  must  needs  cease,  as  a  crime. 

But  this  act  did  not  extend  to  alter  the  trials  in  case  of  treason, 
and  therefore  notwithstanding  this  act  the  statute  of  28  H.  8.  cap.  15. 
for  treasons  at  sea,  26  H.  8.  cup.  6,  for  counterfeiting,  &c.  in  Wales. 
32  H.  S.  cap.  4.  for  treasons  in  Wales,  33  H.  8.  cap.  23.  for  treasons 
to  be  tried  out  of  their  county,  35  H.  8.  cap.  2.  for  trial  of  foreign 
treasons,  stood  yet  in  their  force,  until  the  statute  of  1  <§•  2  P.  <§•  M. 
cap.  10.  . 

Again,  notwithstanding  that  by  some  former  statutes  certain  of- 
fences, which  were  felony  before,  as  wilful  burning  of  houses 
and  poisoning,  were  made  treason,  yet  the  repeal  of  those  [  291  l 
acts  that  made  them  treason  leaves  them  nevertheless  in  the 
state,  wherein  they  before  were,  namely  felony. 

Again,  upon  consideration  and  comparison  of  the  5lh  and  6th 
clauses  these  things  are  observable,  namely,  1.  The  wisdom  of  the 
law-makers,  that  put  the  very  same  offenses  in  words  spoken  in  a 
lower  rank  of  punishment  than  the  same  things  written  or  printed, 
making  the  former  but  a  misdemeanor  in  the  first  offense,  which  in 
printing  or  writing  was  treason  in  the  first  offense.  2.  it  is  observable 
upon  that  fifth  clause,  that  there  were  some  things  within  the  fifth 
clause,  that  might  be  treason  or  an  overt-act  of  treason  within  the 
statute  of  25  E.  3.  {other  than  such  as  be  expressed  in  the  statute  of 
25  E.  3.)  vide  quse  supra  dicta  sunt  cap.  13.  touching  the  treason 
in  compassing  the  king's  death. 

It  is  also  observable  upon  the  11th  clause,  that  when  an  offense  is 
made  treason  or  felony  by  an  act  of  parliament,  and  then  those  acts 
are  repealed,  the  offenses  committed  before  such  repeal,  and  the  pro- 
ceedings thereupon  are  discharged  by  such  repeal,  and  cannot  be  pro- 
ceeded upon  after  such  repeal,  unless  a  special  clause  in  the  act  of 
repeal  be  made  enabling  such  proceeding  after  the  repeal,  for  offenses 
committed  before  the  repeal,  as  there  is  in  this  case. 

3  «§•  4  Ed.  6.  cup.  5.  Tho  it  primarily  concerns  riots,  yet  conse- 
quently it  concerns  treason  also  :  tiiereby  it  is  enacted, 


291  HISTORIA  PLACITORUM  CORONA. 

1.  "  That  if  any  persons  to  the  number  of  twelve  or  more  assem- 
bled together  shall  intend, go  about,  practise  or  put  in  ure  with  force 
of  arms  unlawfully,  and  of  their  own  authority  to  kill,  take  or  im- 
prison any  of  the  king's  privy  council,  or  unlawfully  to  alter  or 
change  any  laws  established  by  parliament  for  religion,  or  any  other 
laws  or  statutes  of  this  realm,  and  being  commanded  by  the  sheriff, 
justice  of  peace,  mayor,  t^-c.  by  proclamation  in  the  king's  name  to 
repair  to  their  houses,  if  they  shall  continue  together  by  the  space  of 
one,  whole  hour  after  such  proclamation,  or  after  that  shall  willingly 
in  forcible  and  riotous  manner  attempt  to  do  or  put  in  ure  any  of  the 

things  aforesaid ;  this  shall  be  adjudged  treason  in  all  the 
[  292  2  offenders,  their  aiders,  abetters  and  procurers."     See  before 

in  chapter  XIV.  concerning  levying  of  war,  liow  much  of 
this  high  treason  is  within  the  statute  of  25  E.  3. 

2.  "  That  if  any  persons  to  the  number  of  twelve  or  more  shall 
intend,  go  about,  practise  or  put  in  ure  in  manner  aforesaid  to  over- 
throw, cut,  break  or  dig  up  pales,  hedges,  ditches  or  other  inclosure 
of  any  park,  inclosed  grounds,  banks  of  pools  or  fish-ponds,  conduits, 
conduit-heads,  or  pipes  to  the  same,  which  may  remain  open,  or  un- 
lawfully to  have  common  or  way  in  the  said  park  or  grounds,  or  to 
destroy  the  deer,  warrens  of  conies,  dove-houses,  fish,  or  to  pull  down 
houses,  mills,  bays  or  barns,  or  to  burn  stacks  of  corn  or  grain,  or  to 
diminish  the  rents  or  yearly  values  of  any  manors,  lands,  S,'C.  or  the 
price  of  any  victuals,  corn  or  grain,  or  any  other  thing  usual  for  the 
sustenance  of  man,  and  being  required,  as  before,  shall  not  depart, 
but  continue  an  whole  hour,  or  shall  after  that  forcibly  attempt  to  do 
or  put  in  ure  the  things  aforesaid  they  shall  be  adjudged  felons  with- 
out benefit  of  clergy." 

T'lde  supra  cap.  14.  which  of  these  offenses  were  a  levying  of  war 
against  the  king. 

3.  "  That  if  any  person  unlawfully  and  without  authority  by  ring- 
ing of  bells,  sounding  of  drums,  trumpet,  horn,  or  other  instrument, 
by  firii]g  of  beacons,  by  malicious  uttering  of  words,  casting  of  bills 
or  writings,  or  by  any  act  whatsoever  raise  or  cause  to  be  assembled 
any  persons  to  the  number  of  twelve,  or  above,  to  the  intent  that  they 
shall  do  any  of  the  acts  aforesaid,  who  shall  not  dissolve  their  assem- 
bly upon  such  proclamation  within  an  hour,  or  shall  con'imit  any  of 
the  said  acts,  then  they,  that  raise  such  assemblies,  shall  suffer  as 
felons." 

4.  "  If  such  assemblies  to  the  number  of  forty,  and  above,  shall 
continue  together  two  hours,  or  shall  bring  weapons,  meat,  (§'C.  to  the 
persons  so  assembled,  it  shall  be  high  treason. 

5.  If  above  the  nimibor  of  two  and  under  twelve  attempt  such 
things,  «§'C.  as  abovesaid,  they  are  to  suffer  imprisonment  for  a  year, 
and  make  fine  and  ransom,  with  treble  damages  to  persons  damni- 
fied. 

6.  In  the  cases  of  treason  within  this  act  tenant  in  tail  is 
[  293  3  to  forfeit  to  the  king  during  life  only,  and  tenant  in  fee  simple 
to  forfeit  only  as  upon  attainder  of  felony. 


HISTORIA  PLACITORUM  CORONA.  293 

7.  Power  is  given  to  the  sheriffs,  justices,  mayor,  ^-c.  to  raise 
power,  and  array  them  in  manner  of  war  against  the  rioters,  to  the 
intent  to  apprehend  the  rioters;  and  if  the  said  rioters  do  not  depart 
upon  proclamation  hut  continue  together,  it  shall  be  lawful  for  the 
sheriff,  4'C.  after  such  commands  to  kill  the  rioters;  if  after  such 
commandment  if  fortune  any  of  the  riotors  be  killed  upon  such  ac- 
count, the  sheriff,  S,'C.  or  any  assembled  by  him  shall  thereof  be  dis- 
charged: then  follows  the  punishment  of  those,  who  refuse  to  assist 
the  sheriff,  or  justice  in  the  repression  of  riots. 

Movers  to  such  riots  are  guilty  of  felony  without  clergy,  and  per- 
sons solicited  thereunto  not  revealing  it  to  suffer  three  months  im- 
prisonment. 

This  act  being  made  in  a  great  measure  for  the  support  of  the  re- 
formed religion  under  Edward  VI.  was  as  to  all  points  of  treason 
therein  contained,  repealed  by  1  Mcir.  cap.  1.  but  in  eflect  the  very 
same  offenses  were  enacted  felonies  within  clergy  by  1  Alar.  sess.  2. 
cap.  12.  which  was  to  continue  to  the  end  of  the  next  parliament, 
and  after  the  death  of  queen  Mary  was  re-enacted  by  1  Eliz.  cap. 
16.  to  continue  during  her  life,  and  till  the  end  of  the  next  session 
after  her  death,  but  then  expired. 

That  which  I  would  observe  upon  this  act  is  this,  how  careful 
they  were  in  this  time  not  to  be  over-hasty  in  introducing  construc- 
tive treasons,  and  to  shew  how  the  opinions  of  the  parliaments  of 
Edward  VI.  queen  Mary,  queen  Elizabeth  went,  as  to  the  point  of 
constructive  treason,  and  how  careful  they  were  not  to  go  far  in  ex- 
tending the  statute  of  25  E.  3.  beyond  the  letter  thereof 

As  to  the  point  of  indenmifying  those,  that  killed  the  rioters  in 
assistance  of  the  sheriff,  it  is  true,  that  the  killing  of  rioters  barely 
for  continuing  together  after  proclamation  required  a  new  law  to 
indemnify  it,  as  in  the  statute  is  provided;  but  if  rioters  resist  the 
sherifi'  in  his  endeavour  to  apprehend  them,  or  make  head  against 
him,  or  continue  to  put  in  ure  their  riotous  acting,  as  pull- 
ing down  houses,  inclosures,  d^'C.  if  the  sheriff,  or  those  that  [  294  '\ 
come  in  aid  of  him,  kill  any  of  them,  the  law  and  the  statute 
of  2  H.  5.  cap.  8.  do  indemnify  them,  as  shall  be  hereafter  more  fully 
declared. 

By  5  «§•  6  ^.  6.  cap.W.  "If  any  person  by  open  preaching,  ex- 
press words  or  sayings  do  expressly,  directly  and  advisedly  set  forth 
and  affirm,  that  the  king,  that  now  is,  is  an  heretic,  schismatic, 
tyrant,  infidel,  or  usurper  of  the  crown,  or  that  any  his  heirs  or  suc- 
cessors, to  whom  the  crown  is  to  come  by  the  statute  of  35  H.  S. 
being  in  lawful  possession  of  the  crown,  is  an  heretic,  schismatic, 
tyrant,  infidel,  or  usurper  of  the  crown  then  such  person,  his  aiders, 
abettors,  procurers,  counsellors,  and  comforters  knowing  the  same, 
shall  for  the  first  offense  lose  their  goods  and  be  imprisoned  at  the 
king's  will,  for  the  second  offense,  after  conviction  for  the  first,  lose 
the  profits  of  their  lands  and  ecclesiastical  benefices  during  their 
lives,  and  be  perpetually  imprisoned,  and  for  the  third  offense,  after 


294  HISTORIA  PLACITORUM  CORONA. 

the  second  conviction,  be  adjudged  traitors,  and  lose  tlieir  lives,  and 
forfeit  as  in  case  of  high  treason. 

"  If  any  person  shall  by  writing,  printing,  painting,  carving,  or 
graving,  directly,  expressly  and  advisedly  publish,  set  forth  and 
affirm,  that  the  king,  or  any  his  heirs  or  successors,  4'c.  is  an  heretic, 
schismatic,  tyrant,  infidel,  or  usurper,  it  shall  be  high  treason,  and  he 
shall  forfeit  as  in  case  of  high  treason. 

"  If  any  person  or  persons  rebelliously  detain  the  king's  castles, 
or  fortresses,  ships,  ordinance,  artillery  or  fortifications,  and  do  not 
render  them  up  to  the  king,  his  heirs  or  successors  within  six  days 
after  proclamation  under  the  great  seal,  it  shall  be  treason,  and  the 
offender,  his  aiders,  4'C.  knowing  of  the  said  offenses  shall  suffer  and 
forfeit  as  in  case  of  high  treason. 

"  If  any  the  king's  subjects  commit  treason  contrary  to  this  act  or 
any  other  act  in  force  out  of  the  realm,  it  shall  be  inquired  and  pre- 
sented by  twelve  men  of  any  county,  which  the  king  by  commis- 
sion shall  assign,  as  if  committed  within  the  realm,  and  the  like 
process  thereupon,  as  if  done  within  the  realm,  and  the 
[^295]  outlawry  against  an  offender  inhabiting  out  of  the  realm 
shall  be  as  effectual  as  if  he  had  been  resident  within  the 
realm. 

"  But  if  he  render  himself  upon  the  outlawry  within  a  year,  he 
shall  be  received  to  traverse  the  indictment. (a*) 

"  Persons  attainted  of  any  treason  shall  forfeit  to  the  king  all  their 
lands  of  any  estate  of  inheritance  in  their  own  right  at  the  time  of  the 
treason  committed,  or  at  any  time  after. 

"  No  proceeding  shall  be  on  any  the  offenses  aforesaid  committed 
only  by  preaching  or  words,  unless  the  offender  be  accused  thereof 
within  three  months  before  one  of  the  king's  council,  justice  of  as- 
sise, justice  of  peace  being  of  the  quorum,  or  two  justices  of  peace 
in  the  shire  where  the  offense  is  committed  :  concealment  of  any  high 
treason,  shall  be  adjudged  only  misprision  of  treason,  and  the  offender 
to  forfeit  as  in  misprision  of  treason. 

"Provided  that  no  person  shall  be  indicted, arraigned,  condemned, 
convicted  or  attainted  for  any  of  the  treasons  or  offenses  aforesaid, 
or  for  any  other  treasons,  that  now  be,  or  hereafter  shall  be,  which 
shall  be  hereafter  perpetrated,  committed,  or  done,  unless  the  same 
offender  or  offenders  be  therefore  accused  by  two  lawful  accusers, 
which  said  accusers  at  the  time  of  the  arraignment  of  the  party  ac- 
cused, if  they  be  living,  shall  be  brought  in  person  before  the  party 
so  accused,  and  avow  and  maintain  that  which  they  have  to  say 
against  the  said  party  to  prove  him  guilty  of  the  treasons  or  offenses 

(x)  This  clause  remains,  as  our  author  observes  below,  unrepealed  to  tliis  day,  so  that 
it  was  great  injustice  to  deny  tlie  benefit  of  a  trial  witliin  the  year  to  Sir  Thomas  Arm- 
stronir,  who  was  out-lawed,  while  he  was  beyond  sea,  36  Car.  2.  and  of  this  opinion 
was  tlie  house  of  commons  by  their  vole  Nov.  1!),  l()8!i,  when  it  was  resolved,  that  Sir 
T/wmas  Armstrimfi'' s  pica  ought  to  have  been  admitted  according-  to  the  statute  of  5  t^  6 
E.  G.  see  Slate  Tr.  Vol.  III.  //.  8!)G.  and  accordingly  the  like  plea  was  allowed  io.John- 
soy,  who  was  indicted  for  counterfeiting  the  coin,  Mich.  2  Geo.  2,  B.  R.  altho  he  had  broke 
prison,  and  was  retaken  in  England. 


HISTORIA  PLACITORUM  CORONA.  295 

contained  in  ihe  bill  of  indictment  laid  against  the  party  arraigned, 
unless  the  party  arraigned  shall  willingly  without  violence  confess 
the  same:  a  saving  of  the  right  of  all,  other  than  the  offenders  and 
their  heirs,  or  such  as  claim  to  their  or  any  of  their  use:  the  wife  of 
the  party  attainted  of  these  or  any  other  treasons  shall  be 
barred  of  dower  of  the  lands  of  the  party  attainted,  so  long  [  296  ] 
as  the  attainder  stand  in  force. "[2] 

Upon  this  statute  many  things  are  observable.  1.  That  it  should 
seem,  that  neither  the  writing  of  these  scandalous  words,  nor  the 
bare  detaining  of  the  king's  forts  or  ships  were  treason  within  the 
statute  of.25  E.  3.  for  if  they  had  been  such,  this  act  would  not  have 
been  made. [3]  2.  The  second  thing  observable  is  the  great  discrimi- 
nation, which  in  this  act  is  made  between  words  and  writing,  the 
latter  being  made  treason,  the  former  only  misdemeanor  in  the  two 
first  offenses,  altho  the  words  be  the  same  in  both.  3.  That  so  much 
of  this  act,  as  is  introductive  of  new  treason,  is  repealed  by  the  statute 
of  1  Mar.  cap.  1.  but  whether  those  two  penalties  previous  to  trea- 
son in  case  of  words,  viz.  for  the  first  and  second  offense,  be  repealed 
by  any  statute,  seems  doubtful,  for  those  are  not  treason,  4.  But 
those  clauses  in  this  statute,  that  concern  trial  of  foreign  treasons, 
concerning  outlawry  of  persons  beyond  the  sea,  forfeiture  of  lands  of 
inheritance  of  the  party  attainted,, loss  of  dower  by  the  wife  of  the 
party  attainted,  stand  unrepealed  to  this  day;  and  so  it  is  held  by 
many,  that  the  clause  concerning  two  accusers  stands  still  on  foot; 
de  quo  vide  postea. 

Touching  the  clause  for  the  forfeiture  of  the  lands  of  the  party  at- 
tainted there  are  these  things  considerable, 

1.  That  by  this  clause  tenant  in  tail  of  the  gift  of  the  king  doth  by 
his  attainder  forfeit  his  estate-tail,  notwithstanding  the  statute  of 
34  H.  8.  cap.  20.  for  as  that  statute  coming  after  26  S,-  33  H.  S.  did, 
as  to  that  case,  repeal  so  much  of  those  acts;  so  this  statute  of  5  <§'  6 
E.  6.  coining  after  34  H.  8,  doth  repeal  that  statute,  as  to  the  case  of 
attainder  of  treason  of  such  donee  in  tail, 

2,  That  this  act  varies  much  from  the  penning  of  the  acts  of 
26  and  33  H.  8.  for  they  seemed,  as  hath  been  observed,  to  fasten 
upon  lands  in  right  of  a  corporation  sole,  as  bishop,  abbot,  4'C.  but 
this  limits  it  only  to  lands  in  their  own  right,  which  possibly,  tho 
an  affirmative  clause,  may  correct  the  extent  of  the  statutes  of 
26  and  33  H.  8.  and  bind  up  the  forfeiture  to  lands  only  in  their  own 
right. 

As  to  the  point  concerning  the  two  lawful  accusers  these 
things  will  be  considerable,  1,  Whether  it  extends  in  law  to  [  297  3 
new  treasons  made  after  this  act.     2.  Whether  by  any  statute 

[2]  "  I  do  not  find  upon  looking-  over  the  State  Trials  that  in  crown  prosecutions  any 
great  regard  was  paid  to  the  acts  of  Edw.  6.  for  near  a  century  after  they  were  passed  ; 
or  indeed  to  the  common  well  known  rules  of  legfal  evidence.  This  every  man  who  will 
do  so  much  penance  as  to  read  over  Ihc  State  Trials  during  the  reigns  of  queen  Eliz.  and 
king  James,  will  find  to  have  been  the  doctrine  and  practice  of  the  limes."    Fosl.  234. 

[3J  See  ante,  p.  146, 


297  HISTORIA  PLACITORUM  CORONiE. 

this  be  repealed.     3.  Admitting  it  be  not,  what  shall  be  said  two  law- 
ful ascusers.     4.  What  a  confession. 

I.  The  statute  of  5  S,-  6  E.  6.  above-mentioned  appoints  two  law- 
ful accusers  in  case  of  all  treason  enacted  or  to  be  enacted;  therefore 
if  a  new  treason  were  made  by  a  subsequent  act  of  parhament  with- 
out any  clause  that  directs  the  indictment  or  trial  in  any  other  man- 
ner than  is  appointed  by  5  <5'  6  E.  by  the  words  of  this  act  there 
must  be  two  lawful  accusers,  both  upon  the  trial  and  indictment. 

But  there  iiave  been  great  opinions,  that  tho  the  words  of  5  <5'  6 
E.  6.  extends  to  treasons  that  shall  be  hereafter  enacted,  yet  this 
clause  doth  not  extend  in  law  to  such  new  treasons,  unless  special 
provision  be  made  for  the  same  in  the  act  making  such  new  treason: 
others  have  been  of  a  contrary  opinion,  because  it  only  concerns  the 
manner  of  proceeding,  which  may  be  directed  by  a  precedent  act,  as 
upon  the  statute  of  IS  Eliz.  cap.  5.  21  Jac.  cap.  4. 

II.  But  certainly,  if  there  be,  by  a  subsequent  statute,  any  deroga- 
tory clause  from  this  statute,  then  there  need  not  be  two  lawful  ac- 
cusers. 

Therefore  upon  the  statutes  of  1  <§•  2  P.  <§•  M.  cap.  11.  in  treason 
for  counterfeiting  the  coin  current  here,  or  for  clipping  and  impairing 
of  coin  (which  was  then  conceived  a  treason  not  repealed  by  1  Mar. 
cap.  1.)  the  evidence  and  course  of  proceeding  at  common  law  both 
upon  the  indictment  and  trial  are  restored,  and  so  no  necessity  of  two 
witnesses;  this  is  agreed  on  all  hands.      Co.  PL  Cur.  p.  25. 

Again,  tho  the  treason  for  clipping  or  wasliing  of  coin  declared  by 
3  H.  5.  cap.  6.  were  repealed  by  the  statute  of  1  Mar.  cap.  I.  as  is 
declared  by  the  preamble  of  the  statutes  of  5  Eliz.  cap.  II.  and  18 
E/iz.  cap.  1.  and  that  the  same  is  newly  made  treason  by  the  statutes 
of  5  and  18  Eliz.  and  consequently,  were  there  no  more  in  the  case, 
two  witnesses  might  be  requisite  by  the  words  of  the  act  of  5  S^  6 
Ed.  6.  because  those  are  newly  made  treasons,  yet  by  the  pennmg 
of  those  statutes  of  5  and  IS  Eliz.  it  is  not  necessary,, be- 
[]  298  ]  cause  the  words  in  both  statutes  are  being'  lawfully  con- 
victed or  attainted  according  to  the  order  and  course  of 
the  law,  which  takes  in  the  whole  proceeding,  as  well  indictment  as 
trial;  for  the  course  of  law  therein  mentioned  seems  to  be  intended 
the  common  law,  and  at  common  law  there  was  no  necessity  of  two 
witnesses  in  any  case  of  treason. 

And  altho  the  statute  of  I  4-  2  P.  S,-'  M.  cap.  11.  did  take  clipping 
and  washing  to  be  continuing  treasons,  and  therein  might  mistake, 
yet  there  being  an  express  clause  in  that  statute,  that  in  those  cases 
the  evidences  at  common  law  should  be  restored;  this  direction  might 
take  off  the  statutes  of  1  <^'  5  E.  G.  as  to  the  two  witnesses  in  those 
cases,  and  so  have  an  influence  upon  the  statutes  of  5  <^'  18  Eliz.  or 
at  least  may  go  far  in  expounding  them  to  restore  the  evidence 
required  at  common  law  in  those  cases. 

But  wliether,  as  to  all  other  treasons,  the  general  clause  in  the 
statute  of  1  <S-  2  P.  S^-  M.  cap.  10.  that  all  trials  hereafter  to  be 
awarded  or  ■made  for  any  treason  shall  be  had  and  used  only 


HISTORIA  PLACITORUM  CORONA.  298 

accordins^  to  the  due  order  and  course  of  the  common  laics  of  this 
realm  and  not  otherwise,  have  taken  away  the  necessity  of  two 
witnesses  upon  the  indictment,  hath  been  controverted, (^)  for  on  all 
hands  it  is  agreed,  that  it  takes  away  the  necessity  of  two  witnesses 
upon  the  trial,  if  there  were  no  more  in  the  case. 

My  lord  Coke  in  Pla.  Cor.  p.  25,  26.  delivers  his  opinion,  that  two 
witnesses  are  necessary  upon  the  indictment  in  case  of  all  treasons, 
other  than  those,  that  are  for  counterfeiting,  clipping,  or  impairing 
the  coin,  and  gives  many  weighty  reasons  for  it,  and  cites  a  resolu- 
tion in  14  Eliz.  lord  Lumley's  case,  and  4  Mar.  Bro.  Corone,  219. 
for  according  to  him  the  indictment  is  a  distinct  thing  from  the  trial  ; 
therefore  the  statute  of  1  (§'  2  P.  d^*  M.  cap.  10.  extending  only  to 
the  trial  doth  not  take  away  the  necessity  of  two  witnesses  upon 
the  indictment,[3]  and  accordingly  the  general  opinion  hath  run  thus 
since. (r) 

But  yet  much  is  to  be  alledged,  that  the  statute  of  1  «5'  2 
P.  4'  M.  cap.  10.  extends  as  well  to  reduce  the  indictment,  [  299  ] 
as  the  trial,  to  the  course  of  the  common  law. 

1.  Because  it  seems  to  be  the  intent  of  the  statute  to  involve  the 
indictment  under  the  general  appellation  of  the  trial,  according  to  2 
<§•  3  P.  (§•  M.  By.  132.  a.  and  tho  it  is  true,  that  1  P.  (^-  M.  T)y.  99, 
100.  in  Thomas's  case  there  were  two  accusers  required,  yet  that 
was  before  the  statute  of  1  c^-  2  P.  4«  M.  cap.  10, 

2.  Because  this  statute  of  1  4'  2  P.  (§•  M.  cap.  10.  in  other  cases 
extends  as  well  to  the  indictment,  as  the  trial;  it  is  agreed,  that  the 
statute  of  33  H.  8.  cap.  23.  concerning  trial  of  treason  in  a  foreign 
county,  is  wholly  repealed  by  1  4-  2  P.  (§•  M.  cap.  10.  quod  vide  Co. 
P.  C.  p.  27.  Dy.  132.  whereas,  if  it  should  only  refer  to  the^rial, 
the  indictment  might  still  be  in  a  foreign  county,  and  so  he  might  be 
indicted  in  a  foreign  county,  and  yet  must  be  tried  in  the  proper 
county:  vide  accordingly  resolved  H.  12  Eliz.  Dy.  286.  h.  touching 
the  rebels  in  the  North,  vvhere  Stamford'^s  opinion,  Lib.  III.  cap. 
26.{a)  is  denied  by  all  the  judges  of  both  benches;  again,  the  statute 
of  33  //,  8.  cap.  20.  touching  the  indictment  and  trial  of  lunatics  in 
anj^  county  the  king  shall  appoint,  is  repealed  by  this  act  of  1  <^'  2  P. 
£)'  M.  cap.  10.  as  well  to  the  indictment  as  the  trial:  vide  Jlnders. 
Rep.  n.  154.  Jlr den's  case.  (6) 

3.  The  indictment  is  in  common  speech  a  part  of  the  trial,  or  at 
least  a  necessary  incident  to  it;  and  it  should  be  necessary  to  have 
two  witnesses  to  the  indictment,  it  would  consequently  be  necessary 

(y)  See  iiTeZ.  9,  18,  40. 

(«)  8tate  Tr.  Vol.  ill.  p.  56.  the  case  of  lord  CastJemoin,  Ibid.  p.  415.  earl  of  Shafts- 
bury's  case;  p.  645.  lord  RusseVs  case, p.  733.  colonel  Sidney's  case. 
{a)  S.  P.  C.  p.  90.  (6)  1  And.  105. 

[3]  This  distinction  is  entirely  without  foundation  even  upon  the  foot  of  those  statutes 
(the  acts  of  Edw.  6.  j(  P.  Sf  M.)  But  the  present  act,  (7  Will.  3.  c.  3.  s.  2.)  hath  not 
lett  room  for  that  distinction.  For  it  enacteth  that,  "  No  person  shall  be  indicted,  S^c. 
but  upon  the  oaths  of  two  lawful  witnesses,"  ^c.  Post.  23:2.  1  East,  P.  C.  128. 


299  HISTORIA  PLACITORUM  CORONA. 

to  have  them  upon  the  trial  also;  for  by  the  statute  of  5  Sr  6.  E.  6. 
cap.  11.  the  two  witnesses,  that  are  upon  the  indictment,  must  avow 
their  testimony  in  the  presence  of  the  party  upon  his  arraignment: 
and  it  seems  incongruous,  that  a  greater  evidence  should  be  required 
to  the  indictment,  which  is  only  an  accusation,  than  to  the  trial, (c) 
where  the  party  is  to  be  convicted;  therefore,  if  the  statute  of  1  4*  2 

/-*.  <^\  M.  intended  to  take  it  away  upon  the  trial,  it  cannot 
[  300  ]  be  supposed  to  continue  the  necessity  of  two  witnesses  upon 

the  indictment. 

4.  There  is  also  a  great  authority  for  this  opinion:  vide  the  resolu- 
tion and  reason  of  the  judges  in  Jlrdeix's  case,  Jinders.  Rep.  n. 
154. (fl(),  where  they  resolved,  that  they  could  not  be  indicted  in  a 
foreign  country  upon  the  statute  of  33  H.  8.  23.  because  the  statute 
1  (5'  2  P.  4'  M.  cap.  10,  restoreth  the  common  law  as  well  in  relation 
to  the  indictment  as  the  trial,  and  the  trial  includes  the  indictment; 
and  this  was  by  all  the  justices  and  barons  so  resolved,  which  case 
is  also  reported  by  justice  Clench,  n.  17.  to  be  19  Novem.  26  Eliz. 
Again  ibidem  n.  28.  "  Fuit  tenus  per  les  justices,  que  ou  le  statute 
de  E.  6.  est,  que  inditement  de  treson  sera  per  2  testes,  &  le  statute  de 
reine  Mary  est,  que  tresons  sey  try  solonc  le  common  ley,  que  ore 
inditements  sey  solonc  le  common  ley;  car  inditement  est  parcel  de 
tryal,  car  nul  tryal  poet  estre  sans  inditement,  and  sic  fuit  in  So7ner- 
ville''s  &  Jirden''s  case. 

5.  It  hath  been  the  care  of  the  parliaments  since  in  their  acts  to 
make  provision  for  two  witnesses  in  cases  of  treasons  newly  made, 
vide  statutes  13  Eliz.  cap.  1.  13  Car.  2.  cap.  1.  so  that  it  was  thought, 
that  the  statute  of  5  4*  6  E.  6.  was  not  of  force  as  to  the  two  witness- 
es, at  least  as  to  treasons  newly  enacted,  otherwise  in  cases  of  new 
treasons  they  needed  not  these  provisions.(e)[4j 

(c)  Lord  Coke  P.  C.p.  25.  says  the  greatest  proof  is  most  of  all  necessary  at  the  time 
of  the  indictment,  because  that  is  the  foundation  of  all  the  rest,  and  is  commonly  found 
in  the  absence  of  the  party  accused. 

(d)  1  And.  107. 

(e)  If  it  were  only  questionable,  that  was  reason  sufficient  for  making  such  provision 
Vide  supra,  p.  261. 

[4]  At  common  law,  one  witness  was  sufficient  in  case  of  treason  as  well  as  on  any 
other  capital  charge.  The  two  witnesses  were  first  required  by  the  1  Edw.6.  c.  12.  and 
the  5^6  Edw.  6.  c.  11.  The  act  of  1  <^  2  P.  Sf  M.  c.  11.  excepts  persons  accused  of 
treasons  relating  to  the  coin.  The  7  Will.  3.  only  extends  to  treasons  working  corrup- 
tion of  blood,  and  expressly  excludes  tlie  counterfeiting  the  coin,  seals,  &.c. ;  only  one 
witness  is  required  in  the  trial  of  these  offences.  1  Leuch,  C.  C.  42.  The  same  provision 
is  contained  in  the  8  Sf  ^  Will.  3.  c.  26.  s.  7.  and  6  Geo.  3.  c.  53.  s.  3.  By  the  39  Sf  40 
Geo.  3.  c.  93.  and  5  tSf  6  Vict.  c.  51.  where  the  overt  act  alleged  is  an  attempt  upon  the 
king's  life,  the  party  shall  be  tried  as  ifi  case  of  murder.  The  stat.  7  Will.  3.  docs  not 
require  that  each  overt  act  shall  be  proved  by  two  witnesses,  but  only  that  the  treason 
shall  be  so  proved.  It  cxjjressly  declares  tliat  there  shall  be  either  two  witnesses  to  the 
same  overt  act,  or  one  witness  to  one  and  anotlicr  witness  to  another  overt-act  of  the 
same  species  of  treason.  Fast.  235.  1  East,  P.  C.  129.  But  if  several  overt  acts  be 
proved  by  different  witnesses  singly,  such  overt  acts  must  relate  to  the  same  kind  of 
treason,  otherwise  it  is  insufficient  by  the  express  provision  of  the  statute,  which  in  this 
respect  is  only  dochirntory  of  vvhiit  was  the  known  rule  of  law  betbre.  id.  130.  See  case 
of  the  Regicides,  Kel.  9.  Lord  UtaJJ'ord's  case,  3  St.  Tr.  204.  Sir   T.  Kaym.  407.    The 


HISTORIA  PLACITORUM  CORONA.  300 

And  thus  the  reasons  stand  on  both  sides,  and  the  these  seem  to 
be  stronger,  than  the  former,  yet  in  a  case  of  this  moment  it  is  safest 
to'hold  that  in  practice,  which  hath  least  doubt  and  danger;  quod 
duhitas,  nefcceris,  especially  in  cases  of  life;(y)  but  upon  misprision 
of  treason  two  witnesses  are  requisite  both  upon  the  indictment  and 
trial.     Co.  Pla.  Cor.  p.  24. 

III.  The  third  thing  considerable  in  this  clause  is,  what 
shall  be  said  two  lawful  accusers  within  tliis  statute,  if  it  be  [  301  ] 
of  force. 

As  to  the  accusers  mentioned  in  the  statute  of  5  <^'  6  E.  6.  cap.  11. 
they  are  no  other  than  the  two  lawful  and  sufficient  witnesses  men- 
tioned in  the  statute  of  1  E.  6.  cap.  12.  in  fine;  this  is  agreed  by  my 
lord  Coke,  PL  Cor.  p.  25. 

Now  what  are  lawful  witnesses  in  this  casei  is  considerable;  the 
lawfulness  of  witnesses  must  respect  either,  1.  The  persons,  or  else, 
2.  The  testimony  of  the  witnesses. 

1.  As  in  relation  to  the  persons  of  witnesses,  those  are  said  law- 
ful witnesses,  which  by  the  laws  of  England  are  allowed  to  be  wit- 
nesses. 

A  feme  covert  is  not  a  lawful  witness  against  her  husband (o-)  in 

(/)  However  since  our  author  wrote  this  matter  is  in  great  measure  settled  by  7  W.  3. 
cap.  3.  whereby  it  is  enacted,  "That  in  all  cases  of  high  treason,  whereby  any  corruption 
of  blood,  ^c.  no  person  shall  be  indicted,  tried  or  attainted,  but  upon  the  oaths  ot  two 
lawful  witnesses  to  the  same  treason ;  but  out  of  this  act  are  excepted  all  proceedings  in 
parliament,  or  proceedings  for  counterfeiting  the  king's  coin,  great  seal,  privy  seal,  or 
signet  or  sign  manual. 

{g)  Co.  Lit.  6.  h. 

necessity  of  two  witnesses  to  prove  the  treason  extends  as  well  to  the  finding  of  the  bill 
of  indictment  by  the  grand  jury  as  to  the  trial  itself  in  open  court,  by  the  very  words  of 
all  the  acts,  "  that  no  person  shall  be  indicted,''''  Sfc,  3  Ins.  25.  Fost.  232.  1  East,  F.  C. 
128.  If  one  overt  act  be  proved  by  one  witness  in  the  county  in  which  the  trial  is  had, 
whicl)  gives  the  grand  jury  jurisdiction  to  inquire,  another  overt  act  of  the  same  species 
of  treason  proved  by  another  witness  in  a  different  county  will  make  two  witnesses 
within  the  stat.  7  Will.  3.  Case  of  Jellius,  1  East,  P.  C.  130.  Guvuii's  case,  2  .Si.  Tr.  873. 
Though  it  requires  two  witnesses  to  each  treason,  yet  a  collateral  fact  not  tending  to  the 
proof  of  the  overt  acts,  may  be  proved  by  one.  Fost.  240.   'Vaughan^s  case,  5  St.  Tr.  38. 

By  the  Constitution,  Art.  3.  Sect.  3.  No  person  shall  be  convicted  of  treason,  unless  on 
the  testimony  of  two  witnesses  to  the  same  overt-act,  or  confession  in  open  court.  The 
same  provision  is  to  be  found  in  the  1st  sect,  of  the  act  of  30  April,  1790.  The  provision 
in  the  Constitution,  that  the  two  witnesses  must  be  to  the  same  overt  act,  was  in  conse- 
quence of  a  construction  which  had  prevailed  in  England,  that  though  t#o  witnesses 
were  required  to  prove  an  act  of  treason,  yet  if  one  witness  proved  an  act  and  another 
witness  another  act  of  the  same  species  of  treason,  it  was  sufficient;  a  decision  which 
has  always  appeared  to  me  contrary  to  the  true  intention  of  the  law  which  made  two 
witnesses  necessary.  Per  Iredell,  J.  Charge  to  the  Grand  Jury,  Tr.  of  Fries,  14.  When 
two  witnesses  are  produced,  who  prove  the  overt  act  laid  in  the  indictment,  there  might 
be  then  evidence  drawn  from  otlier  cuunties  respecting  the  intention;  this  is  the  opinion 
of  Judge  Foster,  and  it  is  my  opinion,  id.  174.  Two  witnesses  are  necessary  on  the 
indictment  as  well  as  upon  the  trial  in  court.  Id.  14.  But  it  was  said  by  Marshall 
C.  J.  (1  Burr''s  Tr.  142,)  that,  though  "the  Constitution  declares  that  two  witnesses 
are  necessary  to  produce  conviction;  yet  it  may  not  be  so  strictly  and  absolutely  neces- 
sary  to  authorise  an  indictment."  The  same  proof  is  not  required  to  commit  a  person 
for  high  treason  as  would  be  necessary  to  convict  him  on  a  trial  in  chief  id.  11.  Serg. 
on  Const.  375.  See  also  Resp.  v.  ISlCarty,  2  Ball.  86.  Judge  Wilson's  Works,  vol.  2. 
p.  3G4.  Davis's  Virg.  Cr.  Law,  56. 


301  HISTORIA  PLACITORUM  CORONA. 

case  of  treason,  yet  in  lord  Casthhaveii's  case(A)  upon  an  indiet- 
ment  for  a  rape  upon  his  lady  by  another  by  her  husband's  preseiit 
force,  she  was  received  as  a  witness  by  the  advice  of  the  judges,  that 
assisted  at  that  trial,  and  upon  her  evidence  he  was  convicted  and 
executed. 

But  a  woman  is  not  bound  to  be  sworn  or  to  give  evidence 
against  another  in  case  of  theft,  ^'C.  if  her  husband  be  concerned,  tho 
it  be  material  against  another,  and  not  directly  against  her  husband. 
Dull.  cap.  \\\.{i) 

Upon  an  indictment  upon  the  statute  of  3  H.  7.  cap.  2.  for  taking 
away  forceably  and  marrying  a  woman,  the  woman  so  married  may 
be  sworn  against  her  husband,  that  so  marries  her,  if  the  force  were 
continuing  upon  her  till  the  marriage:  and  thus  it  was  done  in  the 
case  of  lady  Fulivood,  M.  13  Car.  1.  B.  R.Croke{k)  and  accordingly 
seriatim  resolved  by  all  the  judges  of  the  king's  bench  lately  in  the 
case  of  Brown,  Trin.  25  Car.  2.{l)  for  these  reasons:  1.  Because 
otherwise  the  statute  would  be  vain  and  useless,  for  possibly  all  that 
were  present  were  of  the  offender's  confederacy.  2.  The  marriage, 
tho  a  marriage  de  facto,  yet  if  it  were  effected  by  a  contimied  act  of 
force,  was  not  a  marriage  de  jure,  for  it  was  dissolvible  by 
r  302  1  divorce,  unless  ratified  by  a  subsequent  free  cohabitation  or 
consent.  But  3dly  and  principally,  because  it  was  fla- 
grante crimine,  for  the  child  was  taken  away  upon  the  Thursday, 
married  the  Friday,  and  seized  by  the  guardian  the  next  day,  before 
they  had  lain  together,  and  the  force  was  all  that  while  continuing 
upon  her.  4.  There  were  other  witnesses,  that  proved  the  first  taking 
away  by  force  against  the  child's  will,  tho  there  were  no  witnesses 
to  prove  the  marriage  forceable  but  herself,  who  expressly  swore, 
that  she  was  married  against  her  will;  upon  all  which  circumstances 
it  was  ruled,  that  she  should  be  examined  in  evidence,  and  the  credi- 
bility of  her  testimony  left  to  the  jury ;  but  most  were  of  opinion,  that 
had  she  lived  with  him  any  considerable  time,  and  assented  to  the 
marriage  by  a  free  cohabitation,  she  should  not  have  been  admitted 
as  a  witness  against  her  husband;  he  was  convicted  and  had  judg- 
ment of  death,  and  was  executed. [5] 

Regularly  an  infant  under  fourteen  years  is  not  to  be  examined 
upon  his  oath  as  a  witness;  but  yet  the  condition  of  his  person,  as 
if  he  be  lintelligent,  or  the  nature  of  the  fact  may  allow  an  exami- 
nation of  one  under  that  age,(m)  as  in  case  of  witchcraft  an  infant 

(//)  Hut.  115.  Rush.  Collect.  Vol.  II.  p.  93-101.    State  Tr.  Vol.  I.  p.  366. 

(i)  N.  Edit.  cup.  1G4.  p.  540. 

{k)  Cio.  Car.  482,  484,  488,  492.  the  like  was  done  in  the  case  of  Haagen  Swendsen, 
Mich,  1  Ann.  B.  R.  Stale  Tr.  Vol.  V.p.  453. 

(/)   1  Ven.  243.     3  Keb.VJ'S. 

(m)  By  the  laws  of  Ina  a  child  ten  j'ears  old  was  allowed  to  be  a  witness  in  theft. 
Vide  L  L.  Ina.  I.  1. 


[5]  As  to  the  competency  of  luibsand  and  wife  to  five  evidence  for  or  against  each 
other,  see  Roscoe;  Cr.  Ev.  (Mr.  Sharswood's  Edition,)  112. 


HISTORIA  PLACITORUM  CORONiE.  802 

of  nine  years  old  has  been  allowed  a  witness  against  his  own  mother. 
Dalton.{n) 

And  the  like  may  be  in  a  rape  of  one  under  ten  years  upon  the 
statute  of  IS  Eliz.  cap.  6.  and  the  hke  hath  been  done  in  case  of  bug- 
gery upon  a  boy  upon  the  statute  of  25  H.  8.  cap.  6. 

And  surely  in  some  cases  one  under  the  age  of  fourteen  years,  if 
otherwise  of  a  competent  discretion,  may  be  a  witness  in  a  case  of 
treason:  vide  qnse  snpra  dixi,p.  26. 

A  man  concerned  in  point  of  interest  is  not  a  lawful  accuser  or 
witness  in  many  cases,  the  party  to  an  usurious  contract,  cannot  be 
a  witness  to  prove  an  usurious  contract,  upon  an  information,  if  the 
money  be  not  paid,  for  he  swears  to  avoid  his  own  debt  or 
security  ;(o)  but  if  the  money  be  paid  he  may  be  a  witness  [303'] 
to  prove  it,  where  another  informs,  for  he  is  to  gain  nothing. 

And  therefore  if  any  man  hath  the  promise  of  the  goods  or  lands 
of  the  party  attainted,  he  is  no  lawful  witness  to  prove  the  treason. 

A  person  outlawed  in  trespass  is  nevertheless  a  lawful  witness,  but 
no  lawful  juryman  or  indicter  in  case  of  felony  or  treason.  Sir  Wil- 
liam fVilhipoPs  case.(/?) 

A  father  or  son  or  adversary  in  a  suit  is  a  witness  for  or  against 
a  person  accused  of  any  crime,  yet  not  always  a  competent  jury- 
man. 

A  pariiceps  criminis  is  in  some  cases  a  lawful  accuser  within  this 
statute,  in  some  cases  not. 

An  approver  shall  be  sworn  to  his  appeal,  Stamf.  Pla.  Cor.;(cf) 
but  it  seeins,  that  he  shall  not  be  a  witness  upon  the  trial,  if  the  party 
accused  put  himself  upon  his  country,  because,  if  he  fail  in  proving 
the  party  guilty,  he  shall  be  hanged. 

In  Sir  Percy  Cresbi/^s  case,  P.  19  Jac.  Nor/e's  Pep.  p.  154,  placiio 
676.  in  Camera  Stellald,  if  two  defendants  be  charged  for  a  crime, 
one  shall  not  be  examined  against  the  other  to  convict  him  of  an 
offense,  unless  the  party  examined  confess  himself  guilty,  and  then 
he  shall  be  admitted. 

9  Dec.  15  Car.  2.  at  Newgale,  Henry  Trew  was  indicted  of  burg- 
lary, and  by  advice  of  Keeling  chief  justice,  Broivn  justice,  and 
IVilde  recorder,  Perrin  that  was  in  goal  for  two  other  robberies,  and 
confessed  himself  to  be  in  this  burglary,  was  sworn  as  a  witness 
against  Trew,  but  he  was  not  indicted  of  the  burglaries  or  robberies. 
Ex  libro  Bridgman. 

10  Bee.  1662.  Tonge,  Philips,  and  others(r)  were  indicted  for 
treason  for  compassing  the  king's  death,  the  question  was,  whether 
those,  that  were  parties  in  the  compassing,  which  were  not  yet  par- 
doned, nor  indicted,  might  be  prodliced  as  witnesses,  namely  Biggs 
and  others;  and  upon  conference  with  all  the  judges  these  points 
were  resolved. 

(71)  Dalt.  Just.  N.  Edit.  p.  541.  (7)  Lib.  II.  cap.  56.  p.  145.  a. 

(0)  Co.  Lit.  6.  h.  (r)  Keel.  17.  State  Trials,  Vol.  11.  p.  488. 

ip)  Cro.  Car.  134.  147.  TV.  Jones  198. 


304  HISTORIA  PLACITORUM  CORONA. 

1.  That  the  party  to  the  treason,  that  confessed  it,  may  be 
r  304  ]  one  of  the  two  accusers  or  witnesses  in  case  of  treason,  for 
the  statute  intended  two  such  witnesses,  that  were  allowable 
witnesses  at  common  law,  and  so  may  a  particeps  criminis  be  ad- 
mitted as  a  witness,  and  was  admitted  to  give  evidence  to  the  jury; 
but  the  jury  may,  as  in  other  cases,  consider  of  the  evidence  and 
credit  of  the  witnesses,  but  he  is  sufficient  to  satisfy  the  statute. 

2.  That  the  confession  before  one  of  the  privy  council  or  a  justice 
of  the  peace  being  voluntary  made  without  torture  is  sufficient  as  to 
the  indictment  or  trial  to  satisfy  the  statute,  and  it  is  not  necessary, 
that  it  be  a  confession  in  court;  but  the  confession  is  sufficient,  if 
made  before  him  that  hath  power  to  take  an  examination. [6] 

3,  The  king  having  promised  a  pardon  to  Riggs,  if  he  would  dis- 
cover the  plot,  he  performed  that  part  by  his  discovery;  and  this  was 
held  by  all  no  impediment  to  his  testimony,  for  the  promise  was  not 

[6]  Though  the  modern  cases  are  contradictory,  none  of  them  have  followed  to  its 
full  extent  the  doctrine  of  this  resolution.  On  the  trial  of  the  rebels  in  1746,  the  judges 
admitted  the  confessions  of  the  prisoners  to  be  given  in  evidence  against  them  upon 
proof  by  two  witnesses.  Fost.  10.  Greg^s  case,  I  East.  P.  C.  134.  At  a  conference  pre- 
paratory to  the  trial  of  Francia,  in  the  year  1716,  it  was  agreed  that  the  confession 
which  the  acts  of  Edw.  VI.  intended  to  except,  was  only  a  confession  upon  the  arraign- 
ment of  the  party,  which  amounts  to  a  conviction;  that  the  design  of  those  acts  was 
merely  to  prevent  any  other  confession  from  operating  as  a  conclusion  and  absolute  con- 
viction;  but  that  in  all  cases  the  confession  of  a  criminal  may  be  given  in  evidence 
against  him  ;  and  that  in  case  of  treason,  if  such  confession  be  proved  by  two  witnesses, 
it  is  proper  evidence  to  be  left  to  a  jury.  Id.  133.  Fost.  241.  In  Willises  case,  8  St.  Tr. 
250.  a  witness  was  called  to  prove  what  the  prisoner  said  to  him  touching  the  share  he 
had  in  the  treason;  it  was  objected  that  no  confession,  unless  it  be  made  in  open  court, 
ought  to  be  admitted;  but  the  judges  were  clear  that  such  a  confession  was  admissible, 
and  would  go  in  corroboration  of  other  evidence  to  the  overt  acts.  Though  it  might  be 
still  a  disputable  point,  whether  a  confession  out  of  court  proved  by  two  witnesses,  was 
of  itself  sufficient  to  convict.  Upon  this  point  Ward,  C.  B.  observed,  "a  confession 
shall  not  supply  the  want  of  evidence,  tliere  must  be  still  two  witnesses  to  the  treason. 
But  to  say  it  sliall  not  be  given  in  evidence,  there  is  no  ground  for  it."  And  the  Sol. 
Gen.  Sir  Robert  Eyre,  admitted  that  the  prisoners  should  not  be  convicted  on  a  trial,  with- 
out  two  lawful  witnesses,  that  was  the  thing  provided  for.  That  it  was  to  exclude  a 
precedent  that  liad  been  settled  in  Tongas  case,  but  it  was  not  designed  to  exclude  all  • 
confessions.  That  they  were  evidence  at  law  and  always  must  be  so.  That  tiie  design 
of  the  act  was  to  exclude  confessions  from  having  the  force  of  a  conviction,  unless  it 
were  in  a  court  of  record ;  and  to  prevent  a  confession  proved  by  two  witnesses  from 
being  a  suflicient  ground  (or  a  conviction.  See  Vaughaii's  case,  5  St.  Tr.  38.  Salk.  634. 
Case  of  (S/HJ^//,  alius  May,  Fost.  242.  In  Berwick's  case,  Fost.  11.  Lord  C.  J.  Willie  Sf 
Mr.  J.  Abnc)/  thought  that  a  confession  after  the  fact  proved  by  two  witnesses,  was  suffi- 
cient to  convict  under  the  7  Will.  3.  Foster,  J.  doubted;  he  was  clear  that  it  might  be 
given  in  evidence  as  a  corroborating  proof  His  doubt  was,  whether  it  being  proved  by 
two  witnesses,  is  a  conclusive  evidence,  or  an  evidence  sufficient  of  itself  to  convict  with- 
out otlier  proof;  since  the  7  Will.  3.  seems  to  require  two  witnesses  to  overt  acts,  or  a  con- 
fession  in  open  court.  The  words  "open  court"  are  omitted  in  both  of  the  acts  of  Edw. 
VI.;  they  were  inserted  in  the  7  Will.  3*  in  order  to  carry  the  necessity  of  two  wit- 
nesses to  the  overt  acts  furtlier  than  the  statutes  of  Edw.  VI.  were  tliought  to  carry  it. 
Fost.  240.  see  1  East,  P.  C.  131  et  seq. 

The  Constitution,  Art.  3.  Sect.  3.  and  Sect.  1.  of  the  act  of  30  April,  1790,  require  the 
confession  to  bo  made  in  open  court.  It  was  held  in  the  Tr.  of  Fries,  171,  176,  206, 
that  the  confession  of  the  prisoner,  althougli  proved  by  two  witnesses,  if  made  out  of 
court,  is  not  of  itself  sufficient  to  convict;  though  it  might  be  received  as  corroboratory 
proof  of  the  intent  or  quo  animo;  or  by  way  of  confirniiition  of  wiiat  has  been  before 
sworn  to.    See  Resp.  v.  Roberts,  1  Dull.  40.  Resp.  v.  McCurty,  2  id.  86. 


HISTORIA  PLACITORUM  CORONA.  304 

applied  to  witnessing  against  any  other;  but  two  justices(.9)  held,  that 
if  the  king  promised  a  pardon  upon  condition,  that  he  would  witness 
against  any  others,  and  that  being  acknowledged  by  Bi<rgs  when  he 
he  took  upon  him  to  give  evidence,  <5'C.  that  will  make  him  uncapa- 
ble  to  give  evidence,  because  he  swears  for  himself:(/)  but  in  this 
point  the  greater  number  were  of  a  contrary  opinion, (z/)  ex  libro 
Bridfjrriian  verbaiim,and  I  remember  the  consultation  and  resolution 
accordingly. 

And  accordingly  at  the  sessions  of  Newgate  1672.  Mar?/  Price 
was  convicted  of  treason  in  clipping  the  current  money  of  England 
by  the  testimony  of  those,  that  were  participes  criminis,{x)  namely 
Throgmorton  and  others,  who  brought  her  broad  money  upon  allow- 
ance of  lOl.  per  Cent,  and  carried  off  the  dipt  money  into  their  mas- 
ter's cash. 

The  like  conviction  was  in  the  same  year  of  Hyde  and 
others  of  robbery  upon  the  highway  by  one  that  was  a  party   f  305 1 
in  the  robbery,  but  not  indicted. 

But  in  these  and  the  like  cases,  1.  The  party  that  is  the  witness,  is 
never  indicted,  because  that  doth  much  weaken  and  disparage  his 
testimony,  but  possibly  not  wholly  take  away  his  testimony.  2,  And 
yet,  tho  such  a  party  be  admissible,  as  a  witness  in  law,  yet  the  cre- 
dibility of  his  testimony  is  to  be  left  to  the  jury,  and  truly  it  would 
be  hard  to  take  away  the  life  of  any  person  upon  such  a  witness,  that 
swears  to  save  his  own,  and  yet  confesseth  himself  guilty  of  so  great 
a  crime,  unless  there  be  also  very  considerable  circumstances,  which 
may  give  the  greater  credit  to  what  he  swears. 

If./?.  B.  and  C.  be  indicted  of  perjury  on  three  several  indictments 
concerning  the  same  matter,  ^.  pleads  not  guilty,  B.  and  C.  may  be 
examined  as  witnesses  for  ./?.  for  yet  they  stand  unconvicted,  altho 
they  are  indicted,  19  Car.  1.  B.  JR.  Bilmore's  case. 

By  the  statute  of  1  4*  2  P.  Sc  M.  cap.  14.  justices  of  peace  ought 
to  examine  the  party  and  take  informations  touching  offenses  brought 
before  them,  and  certify  them  at  the  next  goal-delivery. 

Tho  jnstices  of  peace  cannot  hear  and  determine  treason  by  virtue 
of  their  commission  of  the  peace,  no  nor  take  an  indictment  of  it,  yet 
they  may  take  examinations  and  informations  touching  such  offense 
of  the  party  brought  before  them,  and  certify  them  according  to  that 
statute;  and  those  informations  taken  upon  oath,  as  they  ought  to  be, 
and  sworn  to,  by  the  justice  or  his  clerk,  that  took  them,  to  be  truly 
taken,  may  be  read  in  evidence  against  the  prisoner,  if  the  informant 
be  dead,  or  not  able  to  travel,  and  sworn  so  to  be;  yea  by  some  opi- 
nion, if  he  were  bound  over  and  appear  not,  they  may  be  read,  which 
seems  to  be  questionable. 

(si  These  were  our  author  and  J.  Brown. 

it)  Vide  postea  part.  2.  cap.  27. 

(«)  Of  this  contrary  opinion  was  the  court  in  the  case  of  Christopher  Layer,  Mich. 
9  Geo.  I.  B.  R.  State  Tr.  Vol.  VI.  p.  259. 

(x)  But  it  does  not  appear  in  this  case,  whether  they  were  promised  a  pardon  or  note 
the  like  resolution  was  in  the  case  of  Joseph  Clark  for  coining  16  Car.  2.  see  Kel.  33. 
but  in  that  case  the  witness  had  actually  obtained  a  pardon. 
VOL.    I. 31 


305  HISTORIA  PLACITORUM  CORONA. 

And  in  such  case  information  upon  oath  taken  before  justices  of 
the  peace  of  one  county  may  be  transmitted  before  justices  of  goal- 
delivery  of  that  county,  where  the  otfense  was  committed,  viz.  if  the 
otfender  were  brought  before  that  justice;  qusere  tamen^  be- 
\_  306  ]  cause  the  offense  was  out  of  his  jurisdiction;  yet  vide  Bait, 
cap.  111.  jo.  299.  accordant. [y) 

He,  that  hath  a  remainder  expectant  upon  an  estate  tail,  shall  not 
be  allowed  as  a  witness,  and  so  ruled,  but  a  disseisor  may  be  a  wit- 
ness to  a  deed  made  to  the  tenant.  12  Ass.  12. 

Mich.  1652.  A  commission  issued  to  examine  the  validity  of  a 
marriage  supposed  to  be  done  by  force,  and  upon  that  a  divorce  was 
had:  an  indictment  was  against  Welsh,  that  married  the  woman,  the 
depositions  in  the  cause  of  divorce  were  offered  to  prove  the  force, 
but  rejected,  because  in  a  suit  of  another  nature  and  jurisdiction, 
Welsh's  case. 

A  man  convict  of  conspiracy,  perjury,  or  forgery  is  not  a  lawful 
witness.  Crornpf.  de  pace  regis  127.  b.  Dalt.  cap.  lll.(z)  but  if  he 
be  pardoned,  it  seems  he  may  be  a  witness. 

And  thus  far  concerning  the  capacity  or  incapacity  of  the  wit- 
nesses. 

2.  In  relation  to  the  manner  of  their  testimony,  the  opinion  in 
Dyer  of  a  witness  by  hearsay  1  Mar.  Dy.  99.  b.  was  rejected  by  all 
the  judges  in  the  lord  Lumly^s  case,  H.  14.  Eliz.  Co.  Pla.  Cor.  25. 
but  if  it  be  a  hearsay  from  the  offender  himself  confessing  the  fact, 
such  a  testimony  upon  hearsay  makes  a  good  witness  within  the 
statute. 

Tho  information  upon  oath  taken  before  a  justice  of  peace  may 
make  a  good  testimony  to  be  read  against  the  offender  in  case  of 
felony,  where  the  witness  is  not  able  to  travel,  yet  in  case  of  treason, 
where  two  witnesses  are  required,  such  an  examination  is  not  allow- 
able, for  the  statute  requires,  that  they  be  produced  upon  the  arraign- 
ment in  the  presence  of  the  prisoner  to  the  end  that  he  may  cross 
examine  them. [7] 

iy)  N.  Edit.  cap.  1 64.  p.  544.  (z)  p.  542. 

[7]  By  the  Act  of  7  ^  8  Will.  3.  c.  3.  s.  8.  no  evidence  shall  be  admitted  or  given  of 
any  overt  act  that  is  not  expressly  laid  in  the  indictment.  This  does  not  prevent  overt 
acts  not  laid  from  being-  given  in  evidence,  if  they  be  direct  proof  of  any  of  the  overt 
acts  which  are  laid.  R.  v.  Rookwood,  4  St.  Tr.  661.  697.  Holt,  683.  also,  4  St.  Tr.  722. 
731.  6  id.  282.  Fost.  9.  22.  245.  R.  v.  Watson,  2  Stark,  n.  P.  134.  The  evidence  must 
be  applied  to  the  proof  of  the  principal  treason;  for  the  overt  act  is  the  charge  to  which 
the  prisoner  must  apply  his  defence.  And  whether  the  overt  act  proved  be  a  sufficient 
overt  act  of  the  principal  treason  laid  in  the  indictment,  is  matter  of  law  to  be  deter- 
mined by  the  court.  ^4rc^.  C.  P.  461.  If  any  overt  act  be  proved  against  the  prisoner 
in  the  proper  county,  acts  of  treason  tending  to  prove  such  overt  act,  though  done  in 
another  county,  may  be  given   in  evidence.     Fost.  9.  22.  4  St.  Tr.  627.  655.  6  id.  292. 

8  id.  218.  9  id.  558.  580.  8  mod.  91.  1  East,  P.  C.  125.  Resp.  v.  Malin,  1  Dull.  35. 
1  Burros  Tr.  48.  If  tlie  treason  consist  of  a  conspiracy,  any  act  of  the  defendant's 
accomplices,  done  in  furtlierance  of  the  common  design,  although  not  laid  as  an  overt 
act  in  the  indictment,  may  be  given  in  evidence,  provided  it  be  direct  proof  of  an  overt 
act  laid.     R.  v.  Hardy,  1  East,  P.  C.  98.  R.  v.  Stone,  6  T.  R.  527.     Lord  LovaVs  case, 

9  St.  Tr,  670.     When  several  overt  acts  are  laid,  proof  of  any  one  of  them  will  main- 


HISTORIA  PLACITORUM  CORONA.  306 

And  thus  much  concerning  the  statutes  in  the  time  of  Edward  VI. 
and  evidence  upon  indictments,  I  shall  only  add  this. 

In  civil  actions,  as  trespass  against  Ji.  B.  and  C.  if  no  evidence  be 
given  against  any  one  to  prove  him  guilty,  he  may  be  examined  on 
the  part  of  the  defendant,  and  stands  as  a  competent  wit- 
ness;  and  I  see  no  reason,  why  if  two  or  three  persons  be  [  307  ] 
indicted,  and  no  evidence  given  against  one  or  more  of  them, 
but  that  he  may  be  a  witness  for  the  other;  but  otherwise  it  is,  if 
there  be  but  a  colourable  evidence  against  him.(t) 

(t)  Our  author  should  here  have  proceeded  to  his  fourth  g'eneral  head,  and  have 
shown,  what  would  be  a  confession  within  this  statute  of  5  S^  6  Ed  6.  caip.  11.  but  proba- 
biy  he  thought  that  sufficiently  done  by  the  second  resolution  in  Tonge'i  case  mentioned 
by  him,  f.  304. 


CHAPTER  XXV. 

CONCERNING  TREASONS  DECLARED  AND  ENACTED  FROM  1  MAR.  TILL 
THIS  DAY,  VIZ.  13  CAR.  2. 

I  COME  to  the  statutes  concerning  treason  in  the  times  of  queen  Marr/y 
queen  Elizabeth,  and  so  downwards. 

The  first  statute  in  this  period  is  1  Mar.  cap.  1.  consisting  of  three 
clauses. 

1.  "That  no  act,  deed  or  offense  being  by  act  of  parliament  made 
treason,  petit  treason,  or  misprision  of  treason,  by  words,  writing, 
cyphering,  deeds,  or  otherwise  whatsoever,  shall  be  taken,  had, 
deemed,  or  adjudged  to  be  high  treason,  petit  treason,  or  misprision 
of  treason,  but  only  such,  as  be  declared  and  expressed  to  be  treason, 
petit  treason,  or  misprision  of  treason,  in  or  by  the  act  of  parliament 
of  25  E.  3.  touching  treason  or  the  declaration  of  treasons,  and  none 


tain  the  count,  provided  the  overt  act  so  proved  is  a  sufficient  overt  act  of  the  species  of 
treason  charged  in  the  indictment.  Post.  194.  If  the  evert  act  be  laid  with  circum- 
stances not  necessary  to  constitute  the  act  of  high  treason,  tfiey  need  not  be  proved,  but 
may  be  regarded  as  surplusage.  LowicWs  case,  4  St.  Tr.  72'2.  When  words  of  incite- 
ment have  reference  to  an  act,  after  giving  evidence  of  the  words,  you  may  give  evi- 
dence of  the  act,  in  order  fully  to  explain  them.  R.  v.  Lord  George  Gordon,  Doitgl.  590. 
The  intention  may  possibly  be  gathered  at  the  place  where  the  act  was  committed,  or  it 
may  not;  if  not,  evidence  is  admissible  to  prove  it  elsewhere.  Tr.  of  Fries,  175.  In 
order  to  maintain  a  count  for  levying  war,  evidence  must  be  given  to  prove  a  war 
actually  levied,  and  not  merely  a  conspiracy  to  levy  war.  1  Hawk.  c.  17.  s.  27.  The 
fact  that  the  persons  adhered  to  being  enemies,  may  be  proved  by  the  proclamation  of 
war;  or  public  notoriety  is  sufficient  evidence  of  it.  Fost.  219.  The  time  at  which  the 
overt  acts  are  alleged  to  have  been  committed  need  not  be  proved  as  laid;  it  is  enough 
if  they  be  proved  to  have  been  committed  at  any  time  within  three  years  before  the 
finding  of  the  indictment.  R,  v.  Charnocic,  Salk.  288.  R.  v.  Lord  Balmarino,  9  St.  Tr. 
589.  R,  V.  Townly.  Fost.  7.  1  East,  P.  C.  125.  On  motion  to  commit,  no  evidence  of 
a  treasonable  intent  will  be  received,  till  the  fact  of  treason  having  been  committed  is 
first  proved;  but  it  is  otherwise  on  the  trial  of  an  indictment  for  treason.  1  Burros  96. 
469.  See  1  East,  P.  C.  96.  115.  Tucker's  Bl.  Com.  Apdx.  41.  Fost.  362.  Datis'  Virg. 
C.  L.  56. 


807  HISTORIA  PLACITORUM  CORONA. 

other,  nor  that  any  pains  of  death,  penalties,  or  forfeitures  in  any 
wise  ensue  or  be  to  any  offender  or  offenders  for  doing  or  committing 
any  treason,  petit  treason,  or  misprision  of  treason,  other  than  such 

as  be  in  the  said  act  ordained  and  provided,  any  statute  made 
[308]]  before  or  after  the  said  25th  year  of  Edward  III.  or  any 

declaration  or  matter  to  the  contrary  notwithstanding. 

2.  "That  no  advantage  be  given  by  this  act  to  any  person  arrested 
or  imprisoned  for  treason,  petit  treason,  or  misprision  of  treason 
the  last  day  of  September  last  past,  or  heretofore  indicted  or  out- 
lawed, or  attainted  of  treason,  &;c.  or  excepted  out  of  the  queen's 
pardon. 

3.  "  That  all  offenses  made  felony,  or  appointed  to  be  within  the 
case  oi jirxmunire  by  any  statute  since  the  first  day  of  the  first  year 
of  king  Henry  VIII.  (not  being  felony  or  within  the  case  oi prsemu- 
nire  before)  and  all  and  every  branch,  article,  clause  mentioned  or 
declared  in  the  same  statutes  concerning  making  of  any  offense 
felony,  or  within  the  case  o{ prseniunire,  and  all  pains  and  forfeitures 
concerning  the  same,  or  any  of  them,  shall  be  from  henceforth  void 
and  repealed." 

This  excellent  law  at  one  blow  laid  flat  all  those  numerous  trea- 
sons, misprisions,  &c.  at  any  time  enacted  since  25  E.  3.  and  all 
felonies  and  prxmunires  enacted  in  or  after  1  //.  8. 

As  touching  the  first  of  these. 

1.  Hereby  all  those  numerous  treasons  newly  enacted  in  any  for- 
mer king's  time  since  25  E.  3.  a  catalogue  of  most  of  which  is  before 
given,  are  wholly  taken  away. 

2.  Hereby  all  those  treasons,  that  were  declared  treasons,  so  far 
forth  as  those  treasons  had  their  strength  from  such  declarations,  and 
were  not  really  within  the  statute  of  25  E.  3.  are  wholly  taken 
away,  and  left  purely  to  be  determined  according  to  the  statute 
of  25  E.  3.  and  so  far  forth  and  no  farther,  than  that  statute  war- 
ranteth. 

And  therefore  the  declaration  of  3  R.  2.  touching  the  killing  of  an 
embassador,  namely  Jo/ui  Imperiall,  the  declaration  of  3  H.  5.  con- 
cerning clipping  and  impairing  of  coin,  the  declaration  of  Moriimer's 
treason  in  breaking  prison  2  H.  6.  and  all  others  of  that  kind  are 
now  wholly  put  out  by  this  statute,  Coke  upon  the  statute  de  fran- 
genlihus  prisonam,{a)  tho  it  is  true,  that  it  appears  by  1  8^ 
[  309  ]  2  P.  (§•  M.  cap.  11.  they  thought  that  clipping  and  impair- 
ing of  money  had  remained  treason  by  the  declarative  law  of 
3  H.  5.  but  the  statute  of  5  Eiiz.  cap.  11.  hath  declared  the  contrary, 
and  put  that  out  of  question. 

3.  But  it  repeald  not  the  forfeitures  for  old  treasons,  tho  those 
forfeitures  were  enacted  by  statutes  made  after  25  E.  3,  and  there- 
fore the  forfeiture  of  estates-tail  for  treason  given  by  26  H.  8.  con- 
tinues notwithstanding  this  statute,  Co.  P.  C.  p.  19.  and  so  it  was 
resolved  by  all  the  judges  of  England m  the  lord  Sheffield's  case,(*) 

(a)  2  Co.  Instil.  590.  (*)  Palm.  351.  W.  Jones,  69. 


HISTORIA  PLACITORUM  CORONA.  309 

Stamf.  1S7.  b.  \2  Eliz.  Dy  2S.9.  the  reason  is  before  given,  cap.  23. 
/?.  241.  for  the  relation  of  the  repealing  clause  is  only  to  treasons 
not  contained  in  25  E.  3.  not  io  forfeitures  not  contained  in  25  E.  3. 
for  indeed  25  E.  3.  creates  no  forfeitures,  but  only  declares  what  the 
common  law  was,  and  enacts  no  farther  touching  forfeitures. 

4.  But  this  act  did  not  meddle  with  those  new  laws,  that  directed 
special  proceedings,  trials,  S,-c.  or  other  matters  of  that  nature  relating 
to  treason,  but  that  was  done  after  by  1  <§•  2  P.  4'  M.  cap.  10.  de  quo 
postea. 

5.  The  preamble  is  very  considerable,  which  takes  notice  of  the 
severity  of  former  statutes,  that  made  words  only  without  other  fact, 
or  deed,  to  be  high  treason,  which  was  one  of  the  causes  of  this 
general  repeal. 

Touching  the  second  clause,  as  is  before  observed  in  the  precedent 
chapter,  the  repeal  by  1  Mar.  had  discharged  all  offenses  committed 
before  that  repeal  against  the  statutes  repeald,  if  it  had  not  been 
specially  provided  to  the  contrary  by  the  proviso  of  this  act  touching 
persons  formerly  indicted. 

Now  as  to  the  third  clause,  it  also  took  away  all  new  felonies 
made  since  the  first  day  of  the  reign  of  Henri/  VIII.  but  whether 
either  of  these  clauses  of  repeal  did  take  away  those  previous 
punishments,  which  for  the  first  offense  was  made  forfeiture  of 
goods,  and  the  second  or  third  offense  made  treason,  whether,  I 
say,  this  statute  took  away  those  penalties,  which  were  less  than 
felony  or  treason  in  the  first  or  second  offense,  or  only  those  punish- 
ments which  were  "made  treason  or  felony,  may  be  a  ques- 
tion ;  as  for  instance,  that  of  1  E.  6.  cap.  12.  the  5th  clause,  [310  J 
which  makes  certain  offenses  by  words  punishable  with  for- 
feiture of  goods  for  first  offense,  loss  of  profits  of  lands  for  second 
offense,  and  treason  for  the  third  offense;  whether  this  statute  ex- 
tends to  successors,  and  (tho  the  penalty  of  treason  for  the  third 
offense  be  repeald  by  this  act)  whether  the  penalties  for  the  first  and 
second  offenses  be  repeald,  seems  to  me  doubtful ;  I  rather  think 
they  are  not. 

And  now  this  act  having  laid  all  former  new  treasons,  felonies, 
and  misprisions  flat,  and  reduced  all  to  the  standard  of  25  E.  3.  the 
necessity  of  state  and  public  peace  puts  the  queen  and  her  parlia- 
ment nevertheless  to  begin  new  provisions. 

1  Mar.  sess.  2  cap.  6.  "  If  any  person  shall  falsely  forge  or  coun- 
terfeit any  such  kind  of  coin  of  gold  or  silver,  as  is  not  the  proper 
coin  of  this  realm,  and  is  or  shall  be  current  within  this  realm  by  the 
consent  of  the  queen,  her  heirs  or  successors,  or  if  atiy  person  do 
falsely  forge  or  counterfeit  the  queen's  sign  manual,  or  privy  signet, 
or  privy  seal,  then  every  such  offense  shall  be  adjudged  high  treason, 
and  the  offenders,  their  counsellors,  procurers,  aiders  and  abetters 
judged  traitors  against  the  queen,  her  heirs  and  successors,  and  suffer 
and  forfeit  as  in  high  treason." 

Concerning  this  statute  much  hath  been  said  before. 

1.  It  is  a  perpetual  act,  and  not  personal  only  to  the  queen,  for  as 


810  HISTORIA  PLACITORUM  CORONA. 

the  word  king  may  include  a  successor,  so  the  word  queen  may  in- 
ckide  a  succeeding  king  or  queen,  and  that  it  was  so  intended  here 
is  apparent  by  the  words  in  the  conchision  shall  be  adjudged  traitors 
against  the  queen,  her  heirs  and  successors ;  and  accordingly  it  hath 
been  often  resolved. 

2.  That  the  foreign  coin  (the  counterfeiting  whereof  is  made  trea- 
son by  this  act)  must  be  such,  as  is  so  made  current  by  proclamation, 
for  by  the  statute  of  17  ^.  2.  cap.  1.  foreign  coin  is  not  to  run  in 
payment  in  England,  and  therefore  there  must  be  an  act  under  the 
great  seal,  as  all  proclamations  ought  to  be,  before  it  can  be  current 
within  this  statute:  vide  accordant  statut.  5  Eliz.  cap.  11.  and  18 
EUz.  cap.  1. 

3.  It  must  be  a  counterfeiting  of  that  foreign  coin,  which 
fSll  ]  is  stamped  in  gold  or  silver,  viz.  the  greatest  part  gold,  or 
the  greatest  part  silver,  for  denominatio  fit  a  tnajore  parte; 
therefore  if  there  be  a  foreign  coin  of  copper,  or  brass  and  copper,  it 
is  not  within  this  statute,  but  it  is  not  necessary,  that  the  counterfeit 
of  it  must  be  gold  or  silver,  for  if  that  be  copper  gilt,  or  alchymy 
after  the  similitude  of  foreign  coin  of  gold  or  silver,  it  is  within  this 
act,  because  the  prototype  is  a  coin  of  gold  or  silver. 

1  Mar.  sess.2.  cap.  12.  The  act  against  riotous  assemblies  is  the 
very  same  in  substance  with  that  of  3  <S'  4  E.  6.  cap.  5.  only  changing 
treason  into  felony  within  clergy,  and  nota  bene  the  power  given  to 
suppress  such  assemblies  by  force,  and  indemnifying  the  suppressors, 
tho  some  of  the  rioters  be  killed :  this  act  was  continued  by  1  Eliz. 
cap.  16.  during  that  queen's  life,  and  till  the  neit  session  after,  and 
then  expired.(^) 

1  4*  2  P.  4'  M.  cap.  3.  "  If  any  person  shall  maliciously  and  of  his 
own  imagination  speak  any  false,  seditious  and  slanderous  news, 
rumors,  sayings,  or  tales,  of  the  king  or  queen,  then  the  person  being 
convict  and  attainted,  as  in  the  act  is  expressed,  shall  be  set  upon  the 
pillory  and  have  both  his  ears  cut  off,  unless  he  pay  one  hundred 
pounds,  and  suffer  three  months  imprisonment;  and  if  it  be  of  the 
reporting  of  any  other,  then  to  stand  on  the  pillory  and  lose  one  of 
his  ears,  unless  he  pay  one  hundred  marks  within  one  month  after 
judgment,  and  suffer  one  month's  imprisonment. 

"And  if  any  shall  maliciously  devise,  write,  print,  or  set  forth  any 
writing  containing  any  false  matter  of  slander,  reproach,  or  dishonour 
to  the  king  or  queen,  or  to  the  encouraging,  stirring  or  moving  of  any 
insurrection  or  rebellion  within  this  realm  or  the  dominions  thereof, 
or  shall  procure  the  same  to  be  written,  printed,  or  set  forth  (the  said 
offense  not  being  punishable  as  treason  within  the  statute  of  25  E.  3.) 
the  offender  shall  for  the  first  offense  have  his  right  hand  stricken  off. 
"  The  second  of  any  of  these  offenses  after  a  former  con- 
r  312"]  viction  is  made  punishable  with  loss  of  goods  and  perpe- 
tual imprisonment:  justices  of  assise,  ^-c.  shall  have  power 

(b)  But  a  new  act  to  much  the  same  purpose  was  made,  1  Geo.  1.  cap.  5.  which  is 
perpetual. 


HISTORIA  PLACITORUM  CORONA.  312 

to  hear  and  determine  offenses,  8,-c.  and  to  commit  persons  suspected 
withont  bail;  no  person  impeachable  for  words,  unless  convict  within 
three  months  after  the  offense :  peers  to  be  tried  by  their  peers." 

Upon  this  act  these  things  are  observable:  1.  That  the  law-makers 
did  not  take  seditious  words  to  be  within  the  statute  of  25  E.  3.  for 
then  they  would  have  added  the  same  clause  as  in  the  other  case, 
viz.  (not  beiyig  treason  ivithin  the  statute  of  25  E.  3.)  Again, 
2.  That  they  did  take  it,  that  some  seditious  writings  might  be  trea- 
son within  the  statute  of  25  E.  3.  for  it  is  an  overt-act,  as  hath  been 
formerly  observed.(t)  3.  That  as  some  writings  exciting  insurrec- 
tion might  be  treason  within  the  statute  of  25  E.  3.  so  some  writings, 
that  might  possibly  by  construction  have  the  same  effect,  might  not 
be  within  that  statute,  for  the  law-makers  cannot  be  supposed  to 
intend  to  make  any  thing,  that  was  treason  within  the  statute  of 
25  E.  3.  to  be  less  than  treason;  and  by  consequence  and  consequen- 
tial illation  many  things  might  by  a  witty  advocate  be  construed  and 
heightened  to  be  to  move  insurrection  and  rebellion,  which  imme- 
diately, and  in  their  own  nature,  nor  in  the  intention  of  the  writer, 
were  never  so  intended;  this  statute  died  with  the  queen,  but  was 
revived  1  Eliz.  cap.  6.  during  that  queen's  life. 

1  4'  2  P.  4'  M.  cap.  9.  "  If  any  by  express  words  or  sayings  have 
prayed,  or  shall  pray,  that  God  would  shorten  the  queen's  life,  or 
take  her  out  of  the  way,  or  any  such  like  malicious  prayer  amount- 
ing to  the  same  effect,  they,  their  procurers  and  abetters  shall  be 
adjudged  traitors. 

"But  as  to  any  the  offenses  aforesaid  perpetrated  during  that  ses- 
sion of  parliament,  if  the  offenders  shall  show  themselves  penitent 
upon  their  arraignment,  no  judgment  of  treason  shall  be  given  against 
them,  but  a  lesser  punishment  may  be  inflicted." 

So   that   they  took  not  this  to  be  a  treason  within  the 
statute  of  25  E.  3.  neither  is  it  thought  to  be  a  very  great  [313  3 
offense,  for  it  is  an  appeal  to  God,  who  we  are  sure  is  not 
moved  by  such  wishes  and  prayers  contrary  to  his  own  command, 
Thou  shalt  not  curse  the  ruler  of  thy  people,  Exod.  xxii.  28. 

\  Sc  2  P.  4*  M.  cap.  10.  consisteth  of  several  remarkable  clauses. 

1.  "If  any  during  the  marriage  between  the  king  and  queen  shall 
imagine  to  deprive  the  king  from  having  jointly  with  the  queen  the 
style,  honor,  and  kingly  name  of  the  realms  and  dominions  belonging 
to  the  queen,  or  to  destroy  the  king  during  the  matrimony,  or  to 
destroy  the  queen,  or  the  heirs  of  her  body,  being  kings  or  queens 
of  this  realm,  or  to  levy  war  within  the  realm  or  marches  of  the 
same  against  the  king  during  the  marriage,  or  against  the  queen  or 
any  of  her  said  heirs,  kings  or  queens  of  this  realm,  or  to  depose  the 
queen  or  the  heirs  of  her  body  kings  or  queens  of  this  realm  from 
the  imperial  crown  of  this  realm,  and  the  said  compassings  malicious- 
ly, advisedly  and  directly  shall  utter  by  open  preaching,  express 
words  or  sayings,  or  if  any  person  by  express  words  shall  maliciously, 

(t)i>.112. 


313  HISTORIA  PLACITORUM  CORONA. 

advisedly,  and  directly  declare  or  publish,  that  the  king  during  the 
marriage  ought  not  to  have  jointly  with  the  queen  the  style,  honor 
and  kingly  name  of  this  realm,  or  that  any  person,  being  neither  the 
now  king  or  queen,  during  the  marriage  between  them  ought  to  have 
the  style,  honor  and  kingly  name  of  this  realm,  or  that  the  now  queen 
is  not,  or  of  right  ought  not  to  be  queen  of  this  realm,  or  after  her 
death  the  heirs  of  her  body,  being  kings  or  queens  of  this  realm, 
ought  not  so  to  be  or  to  enjoy  the  same,  or  that  any  person,  other 
than  the  queen  during  her  life,  or  after  death,  other  than  the  heirs  of 
her  body,  as  long  as  one  of  the  heirs  of  her  body,  shall  be  in  life, 
ought  to  be  queen  or  king  of  this  realm,  then  every  such  offender  shall 
lose  to  the  queen  all  his  goods  and  chatties,  and  forfeit  the  issues  of 
his  lands  during  his  life,  and  have  perpetual  imprisonment;  the 
second  offense  after  a  former  conviction  shall  be  treason. 

2.  "  And  if  any  by  writing,  printing,  overt-act,  or  deed 
(]314]  shall  maliciously,  advisedly  and  directly  utter  the  things 
aforesaid,  then  they,  their  abetters,  procurers,  counsellors, 
aiders,  and  comforters  knowing  the  said  offense  to  be  done,  and 
being  thereof  convicted  and  attainted  by  the  laws  and  statutes  of 
this  realm,  shall  be  adjudged  high  traitors,  and  forfeit  their  goods, 
lands  and  tenements  to  the  queen,  her  heirs  aud  successors,  as  ia 
case  of  high  treason. 

3.  "  Provision  for  the  government  of  the  qiieen's  children. 

4.  "  If  any  person,  during  the  time  that  the  king  shall  have  the 
ordering  of  the  queen's  children,  shall  compass  to  destroy  the  king, 
or  to  remove  him  from  the  government  of  the  said  children,  it 
shall  be  treason. 

5.  "  That  all  trials  hereafter  to  be  had,  awarded  or  made  for  any 
treason,  shall  be  had  and  used  only  according  to  the  due  order  and 
course  of  the  common  laws  of.  this  realm,  and  not  otherwise,  saving 
to  all  persons,  (other  than  the  offenders  and  their  heirs,  and  such: 
persons  as  claim  to  any  of  their  uses,)  all  such  rights,  titles,  interests, 
possession,  leases,  4*c.  which  they  had  at  the  day  of  the  committing 
of  such  treasons,  or  at  any  time  before,  as  if  this  act  had  never  been 
made. 

6.  "  Concealment  of  any  high  treason  shall  be  adjudged  only  mis- 
prision of  treason,  and  to  forfeit  and  suffer  as  in  case  of  misprision 
notwithstanding  this  act. 

7.  "  Trial  by  peers  is  saved  in  treason  or  misprision  of  treason. 

8.  "  None  to  be  impeached  for  words,  unless  indicted  within  six 
months  after  the  offense. 

9.  "  Witnesses  examined  to  or  deposing  any  treasons  in  this  act, 
or  at  least  two  of  them  shall  be  brought  forth  before  the  party 
arraigned,  if  he  require  the  same,  and  say  openly  in  his  hearing 
what  they  can  say  against  him  concerning  the  treasons  in  the  indict- 
ment, unless  the  party  arraigned  shall  willingly  confess  the  same 
upon  his  arraignment. 

10.  "  In  all  cases  of  high  treason  concerning  coin  current 
£315  3  within  this  realm,  or  counterfeiting  the  king's  or  queen's 


HISTORIA  PLACITORUM  CORONA.  315 

signet,  privy  seal,  great  seal,  or  sign  manual,  such  manner  of  trial, 
and  no  other,  shall  be  observed  and  kept,  as  heretofore  hath  been 
used  by  the  common  laws  of  this  realm,  any  law,  statute  or  other 
thing  to  the  contrary  notwithstanding. 

"  The  counsellors,  procurers,  comforters,  and  abetters  for  the  first 
offense  to  suffer  as  tfie  principal  in  the  first  offense,  and  procurers, 
comforters  and  abetters  for  the  second  offense  to  forfeit  as  the  princi- 
pal in  the  second  offense." 

This  statute  for  so  much  as  concerns  the  forfeiture  or  punishment 
inflicted  for  words,  S,^c.  and  likewise  the  treasons  newly  enacted  was 
but  temporary,  and  died  when  the  queen  died  without  issue. 

But  there  is  still  observable, 

1.  The  great  distinction,  that  was  used  between  words  and 
writing;  those  very  things,  which  written  were  made  in  the  first 
offense  treason,  being  only  spoken  were  in  the  first  offense  bul  mis- 
demeanor, altho  many  of  the  words  there  mentioned  sounded  high, 
as  namely  that  the  queen  is  not  or  ought  not  to  be  queen,  but  some 
person  else,  whereby  we  may  gather  the  opinion  of  parliaments  in 
those  times,  that  regularly  words,  tho  of  a  high  nature,  were  not 
treason,  nor  an  overt-act  of  compassing  the  king's  death. 

The  second  thing  observable  is,  that  here  are  some  treasons  newly 
enacted,  which  yet  were  treasons  within  25  E.  3.  as  compassing  to 
destroy  and  depose  the  queen,  and  declaring  the  same  by  writing  or 
overt-act;  and  therefore  this  clause  was  omitted  in  the  statute  of 
1  E/iz.  cap.  6.  and  left  to  the  statute  of  25  E.  3. 

The  3d  thing  observable  herein  is,  that  the  queen's  husband  is 
not  within  the  act  of  25  E.  3.  therefore  it  was  necessary  to  have  an 
act  of  parliament  for  the  securing  of  him,  who  was  only  the  queen's 
husband. 

4.  That  tho  there  was  a  communication  of  the  regal  title  to  the 
queen's  husband,  yet  even  that  could  not  have  been  but  by  act  of 
parliament,  and   yet  no   more   is  communicated,  but   the 
title  and  name,  not  the  authority  and  rule  of  a  king  of  [316] 
Enj^land. 

The  fifth  clause  concerning  restoring  of  trial  of  treason  according 
to  the  course  of  the  common  law  is  of  great  consequence  and  use, 
and  is  perpetual. 

1.  By  this  clause  of  the  statute  as  to  the  case  of  high  treason,  the 
statutes  of  27  E.  3.  cap.  8.  28  E.  3.  cap.  13.  8  H.  6.  cap.  29.  for  trial 
of  an  alien  per  medielatem  linguse  are  wholly  repealed,  and  the  trial 
shall  be  by  Englishmen,  1  Mar.  Dy.  144.  Shirly's  case,  H.  36  Sliz. 
Dr.  Lopezes  case[l]  ruled  per  omnes  jiisticiarios.   Co.  P.  C.  p.  27. 

2.  The  trial  of  a  lunatic  without  issue  joined  by  33  H.  8.  cap.  20. 
and  in  a  foreign  county  by  33  H.  8.  cap.  23.  and  for  treasons  in 
fVales  26  H.  8.  cap.  6,  32  H.  S.  cap.  4.  are  all  repealed  by  this  statute. 
Co.  P.  C.p.  24,  27. 

3.  But  whether  the  statute  of  1  E.  6.  and  5  S,^  6  E.  6.  concerning 

[1]  There  is  an  account  of  Dr.  Lopez's  treason  in  Lord  Bacon's  Works,  2  vol.  p.  216. 


316  HISTORIA  PLACITORUM  CORONA. 

two  witnesses  be  hereby  repealed  vide  sitpra  p.  29S.  only  the  9th 
and  10th  clauses  of  this  statute  seem'  strongly  to  imply,  that  this 
statute  intended  the  repealof  it,  for  otherwise  why  should  that  special 
provision  be  added  in  this  statute,  for  at  least  two  of  the  witnesses 
formerly  examined  to  repeat  their  testimony  to  the  prisoner,  if  he 
desires  it,  when  the  statute  of  5  «§•  6  E.  6.  had  more  effectually  pro- 
vided for  the  same  thing. 

4.  But  the  statute  of  28  H.  8.  cap.  15.  concerning  the  trial  of  trea- 
son committed  upon  the  high  sea  is  not  repealed,  nor  the  statute  of 
35  H.  8.  cop.  2.  for  trials  of  treasons  out  of  the  realm,  because  there 
was  no  way  regularly  appointed  at  common  law  for  the  trial  of 
those  treasons  being  done  out  of  the  bodies  of  counties;  but  it 
seems  the  trial  of  treasons  committed  in  any  place  in  rivers,  or  parts 
within  the  bodies  of  counties,  tho  the  admiral  claimed  jurisdiction 
there,  is  restored  to  the  common  law,  where  it  was  originally 
triable. [2] 

Neither  doth  the  act  extend  to  petit  treason,  for  treason  generally 
spoken  is  intended  of  high  treason ;  therefore  the  trial,  as  to  that, 
stands  in  the  same  manner,  as  it  was  before  the  making  of  that  act. 

5.  Peremptory  challenge  in  case  of  high  treason  is  restored 

[317  ]    by  this  act,  and  the  statute  of  .33  H.  8.  cap.  23.  as  to  that 

point  repeald,  vide  accordant  Co.  P.  C.  p.  27.  <§•  libros  ibi ; 

so  that  at  this  day  he  may  challenge  thirty-five,  viz.  under  three 

juries  peremptorily.   Co.  P.  C.  ibidem. 

\  k.2  P.  &f  M.  cap.  11.  "  Whosoever  shall  bring  from  the  parts 
beyond  sea  into  this  realm,  or  into  any  of  the  dominions  of  the 
same,  any  false  and  counterfeit  money,  being  current  within  this 
realm  by  the  sufferance  and  consent  of  the  queen,  knowing  the  same 
coin  to  be  false  and  counterfeit,  to  the  intent  to  utter  or  make  pay- 
ment with  the  same  within  this  realm,  or  any  of  the  dominions  of  the 
same,  by  merchandizing  or  otherwise,  the  offenders,  their  counsel- 
lors, procurers,  aiders  and  abetters  in  that  behalf,  shall  be  adjudged 
offenders  in  high  treason,  and  after  lawful  conviction  shall  suffer  and 
forfeit,  as  in  cases  of  high  treason. 

"  If  any  be  accused  or  impeached  of  any  offense  within  this  statute, 
or  of  any  other  offense  concerning  the  impairing,  forging,  or  counter- 
feiting any  coin  current  within  this  kingdom,  he  shall  be  indicted, 
arraigned,  tried,  convicted,  or  attainted  by  such  like  evidence,  and 
in  such  manner  and  form,  as  hath  been  used  and  accustomed  within 
this  realm  before  the  first  year  of  the  reign  of  Edward  VI.  any  law, 
statute,  Sf'c.  to  tlie  contrary  notwithstanding." 

Upon  this  statute  several  things  are  observable. 

1.  That  the  foreign  coin  in  this  case  must  be  such,  as  is  made  cur- 
rent in  this  realm  by  the  consent  of  the  queen,  which  cannot  be 
without  proclamation  by  writ  under  the  great  seal,  as  hath  been 
before  said  ;?.  213  &  310. 

2.  That  the  party,  that  brings  it  in,  must  know  it  to  be  counterfeit. 

[2J  1  East  P.  C.  103.  [  ' 


HISTORIA  PLACITORUM  CORON.^.  317 

.  3.  That  it  must  be  brought  into  the  king's  dominions  from  some 
place,  that  is  out  of  the  king's  dominions,  and  therefore  the  importa- 
tation  out  of  Ireland  is  held  not  to  be  an  importation  witliin  this 
statute,  for  that  is  within  the  dominions  of  this  reahn,  tho  not  within 
the  realm. [3]  3  H.  7.  10.  Sr  vide  supra  cap.  20.  p.  225.  Co.  P.  C. 
p.  18. 

4.  It  must  be  brought  with  an  intent  to  merchandize  or 

make  payment  within  this  realm,  and  this  intent  maybe  [318] 
tried  by  circumstances,  tho  the  offender  hath  not  yet  actually 
made  payment  or  merchandize  with  it:  vide  antea p.  229. 

5.  This  is  a  new  law,  for  the  statute  of  4  //.  7.  cap.  18.  whereby 
it  was  formerly  enacted,  is  repealed  by  1  Mar.  cap.  1. 

6.  It  is  a  law  perpetual,  tho  it  speaks  only  of  coin  made  current 
by  the  consent  of  the  king  and  queen  our  sovereign  lord  and  lady, 
and  so  it  hatli  been  still  taken. 

7.  That  at  this  time  it  was  taken,  that  impairing  of  the  coin  cur- 
rent within  this  realm  was  treason  as  to  the  proper  coin  of  this  realm 
by  force  of  the  declarative  law  of  3  H.  5.  cap.  6.  and  that  this  was 
not  repealed  by  1  Mar.  cap.  1.  for  there  was  no  other  law  in  force 
newly  enacted  for  making  impairing  of  the  coin  treason  between 
1  Mar.  cap.  1.  and  1  4*  2  P.  S;  M.  cap.  11.  but  this  error  is  reformed 
by  the  declaration  of  5  EHz.  cap.  11. 

8.  That  without  any  difficulty  in  the  case  of  counterfeiting  coin 
current  in  this  kingdom  there  is  no  necessity  of  two  witnesses,  neither 
upon  the  trial  nor  upon  the  indictment,  so  that  questionless,  as  to 
this  treason,  the  clause  of  the  statutes  of  1  and  5  E.  6.  concerning 
two  witnesses  is  wholly  repealed,  for  the  statute  saiih,  he  shall  be 
indicted,  S,-'C.  the  omission  of  which  word  in  the  general  clause  of 
1  S,'  2  P.  <§•  M.  cap.  10.  which  concerns  treasons  in  general,  is  that 
which  gave  the  great  countenance  to  that  opinion  of  my  lord  Coke, 
that  in  other  treasons  there  must  be  two  witnesses  upon  the  indict- 
ment, tho  that  statute,  as  to  the  trial,  remitted  the  course  of  the  com* 
mon  law, 

I  come  now  to  the  time  of  queen  Elizabeth. 

The  statutes,  that  concern  treason,  I  shall  range  in  three  ranks: 
1.  Such  as  more  immediately  concern  the  safety  of  the  queen's  per- 
son. 2.  Such  as  concern  the  money  of  the  kingdom.  3.  Such  as 
concern  the  safety  of  the  queen's  government  in  relation  to  papal 
usurpations  and  matter  of  religion. 

I.  I  begin  with  the  first  rank,  such  as  concern  more  immediately 
the  safety  of  the  queen's  person. 

1  Eliz.  cap.  5.     The  statute  of  1  <§-  2   P.  8,-  M.  cap.  10. 
is  recited,  and  that  that  statute  extended  only  to  queen  [319] 
Mary  and  the  heirs  of  her  body,  the  very  same  statute  in 
effect  is  enacted  over  again,  only   with  an  application  thereof  to 
queen  Elizabeth,  and  the  heirs  of  her  body,  and  almost  all  the 
same  clauses  are  over  again,  except  that  which  concerns  the  trial  of 

[3J  Arch.  C.  P.  477. 


319  HISTORIA  PLACITORUM  CORONJi:. 

treason  according  to  the  common  law,  and  the  clause  of  compassing 
to  destroy  the  queen,  and  manifesting  the  same  by  writing  or  overt- 
act;  two  witnesses  are  required  to  the  indictment  and  arraignment 
of  the  prisoner:  this  act  expired  upon  the  queen's  death  without 
issue. 

1  Eliz.  cap.  6.  The  statute  of  1  Mar.  sess.  2.  cap.  3.  concerning 
seditious  and  false  rumours  is  revived,  as  in  relation  to  queen  Eliza- 
beth, under  the  same  pains  and  penalties,  as  are  therein  contained, 
as  tho  the  same  act  had  extended  to  the  heirs  and  successors  of 
queen  7l/«ry,  any  doubt  to  the  contrary  notwithstanding ;  but  this 
was  personal  to  the  queen  and  the  heirs  of  her  body,  and  was  re- 
pealed by  23  Eliz.  cap.  2. 

13  Eliz.  cap.  1.  "If  any  person  during  the  natural  life  of  the 
queen  siiall,  within  the  realm  or  without,  compass  or  imagine  the 
death  or  destruction,  or  bodily  harm  tending  to  death  or  destruction, 
maiming  or  wounding  of  her  person,  or  to  deprive  or  depose  her 
from  the  style,  honour,  or  kingly  name  of  the  crown  of  this  realm, 
or  of  any  other  realm  or  dominion  belonging  to  her  majesty,  or  to 
levy  war  against  her  majesty  within  the  realm  or  without,  or  to 
move  or  stir  any  foreigners  with  force  to  invade  this  realm,  or  any 
other  her  majesty's  dominions  being  under  her  obeysance,  and  such 
compasses,  imaginations,  devices,  or  intentions,  or  any  of  them  shall 
maliciously,  advisedly,  and  directly  publish,  hold  opinion,  affirm  or 
say  by  any  speech,  express  words  or  sayings,  that  the  queen  during 
her  hfe  is  not,  or  ought  not  to  be  queen  of  this  realm  of  England, 
and  also  of  France  and  Ireland,  or  of  any  other  her  majesty's 
dominions  being  under  her  obeysance  during  her  life,  or  shall  by 
writing,  printing,  preaching,  speech,  express  words  or  say- 
[[320  ]  ings,  maliciously,  advisedly,  and  directly  publish  and  affirm, 
that  the  queen  is  an  heretic,  schismatic,  tyrant,  infidel,  or 
usurper  of  the  crown,  every  such  offense  shall  be  taken,  deemed, 
and  declared  by  authority  of  this  parliament  to  be  high  treason  ; 
and  the  offenders,  their  abetters,  counsellors  and  procurers,  and  the 
aiders  and  comforters  of  the  same  offenders,  knowing  the  same, 
being  indicted,  convicted,  and  attaint  according  to  the  usual  order 
and  course  of  the  common  law,  or  according  to  the  act  of  35  H.  8. 
for  trial  of  treasons  out  of  the  realm,  shall  be  deemed  traitors,  and 
suffer  and  forfeit  as  traitors. 

2.  "  If  any  person  of  any  condition,  place,  or  nation  during  the 
queen's  life  pretend,  utter,  or  publish  themselves,  or  any  of  them,  or 
any  other,  than  the  now  queen,  to  have  right  to  enjoy  the  crown  of 
England  during  the  now  queen's  life,  or  shall  during  the  queen's 
life  usurp  the  crown,  or  the  royal  title,  style  or  dignity  of  the  crown 
of  England,  or  shall  during  the  queen's  life,  hold,  or  affirm,  that 
the  now  queen  hath  not  right  to  hold  the  said  crown,  realm,  style, 
title,  or  dignity,  or  shall  not,  after  demand  made  on  the  behalf  of  the 
queen,  acknowledge  effectually,  that  the  now  queen  is  true  and  right- 
ful queen  of  this  realm,  they  shall  be  disabled  during  their  natural 


HISTORIA  PLACITORUM  CORONiE.  320 

lives  only  to  enjoy  the  crown  by  succession  after  the  queen's  death, 
as  if  such  person  were  naturally  dead. 

3.  "  If  any  person  shall  during  the  queen's  Hfe  hold  or  affirm  a 
right,  interest  or  snccesssion  to  the  crown  to  be  in  any  siich  claimer, 
usurper,  or  pretender,  or  not  acknowledger  after  notification  by  pro- 
clamation of  such  claim,  usurpation  or  pretense,  such  person  shall 
suffer  as  a  traitor. 

4.  *'  If  any  shall  maintain,  that  the  common  laws,  not  altered  by 
parliament,  ought  not  to  direct  the  right  of  the  crown  of  England, 
or  that  the  queen  [Elizabel/i]  with  and  by  the  authority  of  par- 
liament is  not  able  to  make  laws  of  sufficient  force  to  limit  and 
bind  the  crown  of  England,  and  the  descent,  limitation,  inherit- 
ance, and  government  thereof,  or  that  this  statute,  or  any  statute  to 
be  made  by  authority  of  parliament  with  the  queen's  royal  assent 
for  the  limiting  of  the  crown  to  be  justly  in  the  queen's 
person  is  not,  or  ought  not  to  be  of  sufficient  force  to  bind,  F  321  ] 
limit,  restrain,  and  govern  all   persons,   their   rights   and 

titles,  that  in  any  way  might  claim  an  interest,  or  possibility  in  ot 
to  the  crown  of  England  in  possession,  remainder,  inheritance,  suc- 
cession, or  otherwise,  every  such  person  so  holding,  affirming  or 
maintaining  during  the  queen's  life  shall  be  judged  a  high  traitor, 
and  every  person  so  holding  after  the  queen's  death  shall  forfeit  all 
his  goods  and  cliattles. 

5.  *'  If  any  by  writing  or  printing  declare,  before  the  same  be  de- 
clared and  established  by  act  of  parliament,  that  any  particular  per- 
son ought  to  be  right  heir  to  the  queen  (except  the  natural  issue  of 
her  body)  or  that  shall  print,  set  up,  or  sell  such  book,  for  the  first 
offense  he  shall  suffer  one  year's  imprisonment,  and  forfeit  half  his 
goods,  and  for  the  second  offense  it  shall  be  a. praemunire. 

6.  "  Trial  of  a  peer  by  his  peers  is  saved. 

7.  "  Saves  the  right  of  all,  other  than  the  offenders  and  their  heirs, 
claiming  only  as  heir  to  the  offender. 

8.  "  Offender  within  the  queen's  dominions  shall  be  indicted  with- 
in six  months,  and  out  of  the  dominions  within  twelve  months. 

9.  "  No  person  to  be  arraigned  for  any  offense  within  this  act, 
unless  it  be  proved  by  the  testimony,  deposition,  or  oath  of  two 
lawful  and  sufficient  witnesses,  who  shall  at  the  time  of  the  ar- 
raignment of  such  person  be  brought  before  the  party  offending 
face  to  face,  and  there  declare  all  they  can  say  against  the  party 
arraigned,  unless  the  party  arraigned  shall  without  violence  confess 
the  same. 

10.  "  The  aider  or  comforter  of  such,  as  shall  affirm  the  queen  a 
schismatic,  heretic,  tyrant,  infidel,  or  usurper,  shall  for  his  first 
offense,  knowing  the  same  to  be  comnrtlted,  incur  a  praemunire, 
and  for  his  second  oflense,  after  conviction  of  the  former,  shall  be  a 
traitor. 

11.  "  Provided,  that  giving  charitable  alms  in  money,  meat,  drink, 
apparel  or  bedding  for  snstentation  of  the  body,  or  health 

of  any  offender  in  any  offense,  made  treason  ox  prxmunire,  [  322  ] 


323  HISTORIA  PLACITORUM  CORONA. 

during  the  time  of  his  imprisonment,  shall  not  be  taken  to  be  any 
offense." 

Tho  this  act  be  antiquated  by  the  death  of  queen  Elizabeth,  yet 
there  are  (as  in  other  acts  of  this  nature  that  are  expired,)  divers 
matters  that  are  observable  for  the  true  understanding  of  the  com- 
mon law,  and  therefore  I  have  repeated  many  acts  of  this  nature  at 
large. 

1.  This  act  doth  contain  and  enact  some  treasons  as  new  trea- 
sons, which  certainly  were  treasons  by  the  statute  of  25  E.  3.  as 
compassing  to  destroy  or  depose  the  queen,  and  manifesting  the 
same  by  writing,  printing,  or  overt-act;  but  it  was  thought  or  at 
least  doubted,  that  manifesting  the  same  barely  by  words  were  not 
within  25  E.  3.  and  it  appears  by  the  preamble,  that  this  act  was 
made  to  take  away  some  doubts,  as  well  as  to  provide  new  re- 
medies. 

2.  It  partly  appears  by  this  act,  that  the  bare  conspiracy  to  levy 
war  was  not  treason  by  the  statute  of  25  E.  3.  without  a  war 
levied,  and  accordingly  it  was  resolved  P.  39  Eliz.  Burton's  case, 
Co.  P.  C.p.  10.  and  therefore  we  are  to  be  careful  not  to  apply  all 
convictions  of  treason  in  the  queen's  time,  as  judgments  declarative 
of  the  statute  of  25  E.  3.  de  proditionibus,  because  they  were 
oftentimes  indicted  upon  this  statute  in  the  queen's  time,  and  the 
general  conclusion  of  the  indictment  contra  forman  statuti,  and 
sometimes  generally  contra  formam  statut.  with  an  abbreviation 
was  applicable  to  any  statute  then  in  force,  which  was  most  efiectual 
to  this  purpose. 

In  Anderson's  reports, />ar/.  2.  n.  2.{c)  it  appears  that  in  37  E/iz. 
divers  apprentices  were  committed  for  great  riots,  divers  other  ap- 
prentices conspired  to  deliver  them  out  of  prison,  to  kill  the  lord 
mayor  of  London,  to  burn  his  house,  to  break  open  two  houses 
near  the  Tower,  where  there  were  arms  for  three  hundred  men, 
and  to  furnish  themselves;  after  which  divers  apprentices  threw 
about  libels  moving  others  to  join  with  them  and  to  assemble  at 
Bunhill,  where  divers  to  the  number  of  three  hundred  assembled, 
where  they  had  a  trumpet  and  a  cloke  upon  a  pole  instead  of  a  flag, 
and  as  they  were  going  towards  the  mayor's  house,  they  were 
[  323  ]  met  by  the  sheriffs  and  swordbearer,  against  whom  the  ap- 
prentices offered  resistance. 

It  was  resolved,  that  this  was  treason  within  the  statute  of  13 
Eliz.  for  it  was  an  intention  to  levy  war,  and  altho  they  intended  no 
harm  to  the  person  of  the  queen,  yet  because  it  concerned  her  in  her 
office  and  authority,  and  was  for  such  things,  which  the  queen  by 
law  and  justice  ought  to  do,  it  was  a  levying  war  against  the  queen, 
and  they  were  condemned  and  executed. 

This  proceeding  was  upon  this  statute,  and  yet  perchance,  the  cir- 
cumstances of  the  case  wholly  laid  together,  this  might  have  been 

(c)  2  Anders,  p.  4. 


HISTORIA  PLACITORUM  CORONA.  323 

an  actual  levying  of  war  within  the  25  E.  3.  but  they  thought  it  safer 
to  proceed  upon  this  statute. 

3.  That,  tho  regularly  words  alone  make  not  an  overt-act  of  com- 
passing of  the  queen's  death,  yet  printing  or  writing  may  do  it.  Co. 
P.  C.  p.  12,  14,  and  therefore  an  act  of  parliament  was  requisite  to 
make  it  an  overt-act;  yet  observe  how  cautiously  it  is  penned,  ma- 
liciously, advisedly,  and  directly,  <§'C.  leaving  as  little,  as  possibly 
may  be,  to  construction. 

4.  That  defamatory  words,  tho  of  a  very  high  nature,  do  not 
always  make  treason;  there  cannot  be  more  venomous  words  ordi- 
narily thought  of,  than  to  say,  the  queen  was  an  heretic,  schismatic, 
tyrant,  usurper,  yet  an  act  of  parliament  was  necessary  to  make  it 
treason. 

5.  That  to  make  a  man  a  principal  in  treason  by  comfort  or  aid 
after  the  offense  committed  it  must  be  knowingly,  and  therefore  I 
never  thought  that  opinion  of  Stamford,  fol.  41.  6.  to  be  law,  that  a 
receipt  of  a  felon  after  attainder  in  the  same  county  made  a  person 
accessary  without  notice,  because  he  is  bound  at  his  peril  to  take  no- 
tice, that  he  was  attainted,  for  it  oftentimes  lies  as  little  in  the  know- 
ledge of  many  persons,  who  are  convict  or  attainted  of  felony  or 
treason,  as  whether  a  man  be  guilty  of  it:  vide  tamen  Dyer  355. 

6.  That  regularly  in  a  new  treason  the  aiding  and  comforting  of 
the  traitors,  knowing  them  to  be  such,  makes  a  man  guilty  of  trea- 
son, and  therefore  here  is  care  by  express  provision  to  make  the  first 
offense  2.  praemunire. 

7.  Here  is  great  care  to  disable  the  heir  to  the  crown 

from  succeeding,  if  he  usurp  during  the  queen's  life;  but  tho  [  324  ] 
all  the  care  imaginable  was  there  used,  yet  it  hath  been  held, 
that  by  the  accession  of  the  crown  to  the  person  so  disabled,  all  these 
disabihties  have  vanished,  z;«fl^e  1  H.  7.  4.:(af)  see  Mv.  Plowden's 
learned  tract  touching  the  right  of  succession  of  Mary  queen  of  Scot- 
land. 

8.  Nota  concerning  the  power  of  the  king  to  limit  the  crown  by 
consent  of  parhament. 

9.  That  they  took  the  statutes  of  1  and  of  5  <§'  6  E.  6.  concerning 
two  witnesses  to  be  determined,  or  at  least  not  to  extend  to  treasons 
afterwards  enacted,  for  otherwise  there  needed  not  this  special  care 
and  provision  de  novo  for  two  witnesses. 

10.  Tliat  as  the  aiding  or  comforting  of  one,  that  speaks  seditious 
words,  made  treason  on  the  second  conviction,  must  be  for  the  second 

{d)  The  words  of  that  book,  are,  That  the  king  was  a  person  able  and  discharged 
from  any  attainder  eo  facto,  that  he  touk  upon  him  the  government  and  the  being  king;  so 
that  it  was  not  the  bare  accession  or  descent  of  the  crown,  but  the  being  in  actual  pos- 
session of  the  regal  government,  which  was  construed  to  remove  all  disabilities;  this 
case  therefore  is  no  argument  that  the  statute  of  13  Eliz,  could  not  bar  the  right  of  the 
Buccessof,  and  hinder  him  from  succeeding,  but  only  that  if  notwithstanding  he  should 
g:et  possession  of  the  government,  that  possession  would  purge  all  disabilities,  which  is 
just  as  much  as  to  say,  that  he,  who  can  get  the  power  into  his  hands  notwithstanding 
an  attainder  or  act  of  parliament  to  the  contrary,  will  not  think  himself  hound  by  such 
attainder  or  act  of  parliament. 


324  HISTORIA  PLACITORUM  CORONA. 

offense,  after  a  conviction  of  the  former,  so  the  second  offense,  tho 
committed  after  a  former,  is  not  treason,  unless  it  be  also  committed 
after  a  former  conviction:  the  hke  method  is  in  forgery  upon  tiie 
statute  of  5  Ellz.  cap.  14.  and  generally  that  exposition  holds  in  most 
cases,  where  the  second  offense  is  subjected  to  a  severer  punishment 
than  the  former,  for  it  is  intended  of  such  offense  committed  after  the 
conviction  of  a  former,  Co.  P.  C.  172. 

1 1,  It  is  provided  that  charitable  relief  shall  not  make  a  party  guilty 
of  treason  ov  prse7niinire,ViS  an  aider  or  abetter:  this  was  a  necessary 
provision  to  av.oid  question. 

Regularly  relief  by  victuals  or  clothes  of  a  felon  or  of  a  traitor, 
after  lie  is  in  custody  or  under  bail,  makes  not  a  man  an  accessary 
in  felony,  nor  a  principal  in  treason;  but  if  he  help  him  to 
[3253  escape,  that  makes  him  an  accessary  in  one  case  and  a 
principal  in  the  other,  Dalt.  cap.  108.  p.  286. ,(e)  and  with 
this  agrees  this  proviso  in  the  case  of  high  treason;  but  nota  it  ex- 
tends no  farther  than  during  the  time  of  his  imprisonment,  yet  the 
law  is  all. one,  if  he  be  under  bail,  for  he  is  in  custodid  still,  for  the. 
bail  are  in  law  his  keepers,  and  he,  that  is  delivered  to  bail  in  the 
king's  bench,  is  nevertheless  said  to  be  m  custodid  marescalli. 

14  Eliz.  cap.  1.  "If  any  person  do  within  this  realm,  or  else- 
where unlawfully,  and  of  his  own  authority  compass,  imagine,  con- 
spire, practise,  or  devise  by  any  ways  or  means  with  force,  or  by 
craft  maliciously  and  rebelliously  to  take,  detain  or  keep  from  the 
queen  any  of  her  towers,  castles,  fortresses  or  holds,  or  maliciously 
and  rebelliously  take,  burn  or  destroy  them,  having  any  of  the 
queen's  munition  in  them,  or  being  appointed  to  be  guarded  with 
soldiers  within  the  queen's  dominions,  and  the  same  compassing  do' 
advisedly  by  express  words  or  deeds  utter  and  declare  for  any  the 
malicious  or  rebellious  intents  aforesaid,  it  shall  be  adjudged  felony 
in  the  offenders,  their  aiders,  comforters,  counsellers  and  abetters 
without  clergy. 

"  If  any  shall  with  force  maliciously  or  rebelliously  detain  from 
the  queen  any  of  her  majesty's  castles,  towns,  fortresses  or  holds 
within  any  of  her  dominions,  or  any  of  her  ships,  ordinance  or 
artillery,  or  munition  of  war,  and  not  render  the  same  within  six 
days  after  proclamation,  or  wilfully  or  maliciously  burn  or  destroy 
any  of  her  ships,  or  bar  any  of  her  havens,  this  shall  be  treason.'! 

This  act  to  continue  during  the  queen's  life. 

We  may  see  by  this  act,  that  the  opinion  of  the  parliament  in  that 
time  was,  that  this  conspiring  to  take  forts  or  ships  by  force  or  deceit 
was  not  treason;  but  indeed  the  actual  taking  them  by  force  was 
levying  of  war  against  the  king  by  the  statute  of  25  E.  3. 

But  if  a  man  detains  the  king's  town,  or  castle,  or  ships,  and  when 

any  commissionated  by  the  king  demands  the  same,  and  it  is  refused 

to   be  delivered,  and   thereupon  the    king's  commissioner 

r  326  ]]  raiseth  a  power,  makes  an  assault,  and  they  within  stand 

upon  their  guard,  and  repel  force  with  force,  this  had  been 

(e)  N.  Edit.  cap.  161.  p.  531. 


HISTORIA  PLACITORUM  CORONA.  326 

treason  within  the  statute  of  25  E.  3.  for  it  is  a  levying  war,  and  so 
not  a  bare  detaining;  quod  vide  Co.  P.  C.  p.  10.  bis  in  eddem 
pcis^ind. 

Again,  if  this  detaining  the  king's  castle  or  fort,  or  the  castle  of 
any  other  be  barely  such  and  without  assault,  yet  if  it  be  in  com- 
pliance with  a  foreign  enemy,  or  in  confederacy  with  him,  this  is 
treason  within  the  act  of  25  E.  3.  and  an  overt-act  of  adhering  to 
the  king's  ene.mies;  that  therefore,  which  this  act  makes  treason  in 
detaining  after  proclamation,  is  a  simple  detaining  without  the  con- 
currence of  the  circumstances  above-mentioned,  which  was  not  trea- 
son before  the  making  of  this  act. 

14  Eliz.  cap.  2.  "  If  any  person  shall  conspire,  imagine,  or  go 
about  unlawfully  and  maliciously  to  set  at  liberty  any  person  com- 
mitted by  the  queen's  special  command  for  any  treason  or  suspicion 
of  treason  concerning  the  person  of  the  queen  before  indictment  of 
the  person  imprisoned,  and  such  imagination  or  conspiracy  shall  set 
forth,  utter  or  declare  by  express  words,  writing,  or  other  matter,  it 
shall  be  misprision  of  treasons;  but  if  the  party  imprisoned  be  in- 
dicted of  any  treason  concerning  the  person  of  the  queen,  it  shall 
be  felony  so  to  conspire  and  declare  such  conspiracy,  ut  supra. 

'•  If  it  be  after  attainder  or  conviction,  then  such  conspiracy  so 
declared  as  aforesaid  shall  be  high  treason:"  this  act  to  last  during 
the  que€?n's  life. 

These  things  are  observable  upon  this  act,  1.  Here  is  no  provision 
against  the  actual  discharge  or  setting  at  liberty,  neither  needed  it, 
for  if  the  party  committed  had  really  committed  treason,  this  was 
treason  even  within  the  statute  of  25  E.  3.  but  if  it  were  only  a 
commitment  for  treason,  but  no  treason  committed  by  the  person  in 
custody,  such  delivery  was  not  treason,  as  appears  before  cap.  22. 
But  2.  The  conspiracy  to  do  this,  tho  manifested  by  open  act,  was 
neither  treason,  misprision  of  treason,  nor  felony;  neither  is  it  at 
this  day,  but  only  a  bare  misdemeanor  punishable  by  fine 
and  imprisonment,  tho  the  party  imprisoned  were  indicted,  [  327  ~\ 
yea  attainted.  And  3.  This  act  extends  only  to  such  trea- 
sons as  concerned  immediately  the  queen's  person,  not  to  treasons 
touching  her  seal  or  coin. 

And  these  are  all  the  acts,  that  were  made  in  the  queen's  time 
touching  treasons,  which  more  especially  related  to  the  safety  of  her 
person,  all  which  expired  at  her  death. 

II.  I  come  to  those  treasons,  which  were  enacted  in  the  queen's 
time  concerning  coin,  and  they  are  three. 

5  Eliz.  cap.  11.  "  Makes  the  filing,  washing,  rounding,  and  clip- 
ping of  the  coin  of  this  realm,  or  foreign  coin  made  current  by  pro- 
clamation, for  lucre  or  gain,  and  their  counsellors,  consenters,  and 
aiders  to  he  high  treason  by  virtue  of  this  act." 

14  Eliz.  cap.  3.  "  Makes  the  counterfeiting  of  foreign  coin  of  gold 
or  silver,  not  current  within  this  realm,  misprision  of  treason  in  the 
ofienders,  their  procurer's,  aiders  and  abetters." 

15  Eliz.  cap.  1.   *' Makes  the  impairing,  diminishing,  falsifying, 

VOL.  I. — 32 


327  HISTORIA  PLACITORUM  CORONA. 

sealing  or  lightning  of  the  coin  of  this  kingdom  or  foreign  coin  made 
current  by  proclamation  for  kicre-sake  to  be  high  treason  in  the 
offenders,  their  counsellors,  consenters  and  aiders." 

But  of  these  sufficient  hath  been  said  before  in  the  business  of 
money,  forfeiture  and  upon  the  statutes  of  1  and  5  S,'  Q  E.  6.  The 
sum  of  which  is  this; 

1.  That  tlie  treasons  made  by  the  acts  of  5  and  18  E/iz.  are  new 
treasons,  newly  made  by  virtue  of  this  act,  and  every  body  is  estop- 
ped to  say  the  contrary  by  reason  of  the  special  recital  and  penning 
of  this  act,  viz.  shall  be  ac/juds^ed  treason  by  virtue  of  this  act. 

2.  That  the  foreign  coin,  the  clipping  and  impairing  whereof  is 
made  treason  by  this  act,  must  be  such  as  is  made  current  by  pro- 
clamation, for  it  cannot  be  otherwise  current  by  reason  of  the  prohi- 
bition of  the  statute  of  17  R.  2  cap.  1.  and  also,  the  word  proclama- 
tion in  those  acts  refer  to  foreign  coin  so  legitimated  by  proclamation, 
not  to  the  proper  coin  of  this  kingdom,  which  needs  not  a  proclama- 
tion to  legitimate  it. 

3.  The  trial  and  whole  proceeding  is  to  be  according  to 
r  328  3  the  course  of  the  law  by  the  express  words  of  these  acts  and 
of  1  <§'  2  P.  4'  M.  cap.  11.  and  therefore  there  need  not  two 
witnesses  required  by  the  acts  of  1  and  the  5  S,^  6  E.  6. 

4.  Not  only  the  offenders  themselves,  but  the  counsellors,  consent- 
ers and  aiders  are  within  those  acts;  but  altho  regularly  in  case  of 
any  old  or  new  treason  made,  the  comforters  and  receivers  of  the 
offender  are  impliedly  guilty  of  treason  by  a  kind  of  necessary  con- 
comitance, yet  it  seems  to  me  by  the  special  peiming  of  this  act,  it 
extends  only  to  counsellors,  aiders  and  consenters  (according  to  the 
resolution  in  Conner's  case,  Dy.  296.)  as  to  the  offenses  made  trea- 
son by  those  acts,  tho  possibly  it  may  be  treason,  as  to  the  receiver 
of  a  coutUerfeiter  within  the  statute  of  25  E.  3.  according  to  my  lord 
Cokeys  opinion,  Co.  P.  C.  cap.  64.  p.  188.  for  that  is  an  old  treason, 
and  no  such  restriction  by  express  words  to  counsellors,  aiders  and 
assent  ers. 

5.  The  clipping  and  impairing,  that  makes  treason  within  these 
acts,  must  by  the  express  words  of  the  act  he  for  gain  or  lucre,  and 
so  laid  in  the  indictment. 

6.  Counterfeiting  of  coin  not  current  to  bring  it  within  a  praemu- 
nire by  the  statute  of  14  Eliz.  cap.  3.  nutst  be  a  counterfeiting  of 
such  foreign  coin,  as  is  of  gold  or  silver,  or  consists  thereof  for  the 
greatest  part,  and  extends  not  to  the  foreign  copper,  or  leather  coin. 

7.  No  corruption  of  blood  or  loss  of  dower  are  to  be  by  attainders 
of  these  treasons. 

III.  Therefore  I  come  to  the  third  sort  of  statutes  made  in  this 
queen's  time,  which  relate  to  the  queen's  government,  and  especially 
in  relation  to  papal  usurpation. 

1  Eliz.  cap.  3.  is  an  act.  of  recognition  of  the  queen  to  be  rightful 
sovereign  of  this  realm,  and  all  acts  repugnant  thereunto  are  repeal- 
ed; and  cap.  1.  the  oath  of  supremacy  is  enacted  to  be  taken  by  the 


HISTORIA  PLACflTORUM  CORONA.  328 

persons  therein  described :  the  tenor  of  which  oath  followeth  in  these 
words,  viz. 

"I  t/2.  B.  do  utterly  testify  and  declare  in  my  conscience,  that  the 
queen's  iiighness  is  the  only  supreme  governor  of  this  realm, 
and  of  all  other  her  highness's  dominions  and  countries,  as  [  329  ] 
well  in  all  spiritual  or  ecclesiastical  things  or  causes,  as 
temporal,  and  that  no  foreign  prince,  person,  prelate,  state,  or  po- 
tentate hath  or  ought  to  have  any  jurisdiction,  power,  superiority, 
preeminence  or  authority,  ecclesiastical  or  spiritual  within  this  realm, 
and  therefore  I  do  utterly  renounce  and  forsake  all  foreign  jurisdic- 
tions, powers,  superiorities  and  authorities,  and  do  promise,  that  from 
henceforth  I  shall  bear  faith  and  true  allegiance  to  the  queen's  high- 
ness, her  heirs  and  lawful  successors,  and  to  my  power  shall  assist 
and  defend  all  jurisdictions,  privileges,  preeminences  and  authorities 
granted  or  belonging  to  the  qu6en's  highness,  her  heirs  and  succes- 
sors, or  united  and  annexed  to  the  imperial  crown  of  this  realm."  So 
help  me  God  and  by  the  contents  of  this  bool\.(/) 

Every  person  appointed  to  take  the  oath,  and  refusing,  shall  lose 
his  offices  and  benefices,  and  be  disabled  to  take  any  office  or  bene- 
fice, S,'C.  and  then  proceeds  to  other  penalties  upon  refusers. 

And  by  that  act  it  is  enacted,  "That  if  any  person  inhabiting 
within  the  queen's  dominions  shall  by  writing,  printing,  teaching, 
preaching,  express  words,  deed  or  act  advisedly,  maliciously,  and 
directly  affirm,  hold,  stand  with,  set  forth,  maintain,  or  defend  the 
authority,  preeminence,  power  or  jurisdiction,  spiritual  or  ecclesiasti- 
cal of  any  foreign  prince,  prelate,  person,  state  or  potentate  whatso- 
ever, heretofore  claimed,  used  or  usurped  within  this  realm,  or  any 
dominion  or  country  under  the  queen's  obeysance,or  shall  advisedly, 
maliciously,  and  directly  put  in  ure,  or  execute  any  thing  for  the 
extolling,  advancement,  setting  forth,  maintenance,  or  defence  of  any 
such  pretended  or  usurped  jurisdiction,  power,  preeminence  or  au- 
thority, or  any  part  thereof,  every  person  so  ofiending,  his  abetters, 
aiders,  procurers  and  counsellors,  being  convicted  according  to  the 
course  of  the  common  law,  shall  for  the  first  offense  forfeit 
his  goods  and  chatties,  and,  if  not  worth  twenty  pounds,  [  330  J 
shall  also  suffer  a  year's  imprisonment,  and  all  his  ecclesias- 
tical benefices  and  dignities  shall  be  void,  and  for  a  se#&nd  offense 
committed  after  attainder  of  the  first  shall  be  within  penalty  oi  prse- 
munire,  and  for  the  third  offense  committed  after  his  second  convic- 
tion, it  shall  be  adjudged  high  treason." 

None  to  be  impeached  for  words  only,  unless  indicted  within  a 
year  after  the  offense  committed;  and  if  imprisoned,  to  be  set  at 
liberty,  unless  indicted  within  half  a  year  after  the  offense;  trial  of  a 
peer  by  peers. 

None  to  be  indicted,  (§'c.  without  two  witnesses,  which  if  living 
shall  be  brought  face  to  face  before  the  prisoner  upon  his  arraign- 
ment, and  testify  what  they  can  say,  if  the  prisoner  require  it. 

(/)  This  oath,  and  tliis  statute  so  far  as  relates  to  the  said  oath,  are  abrogated  by  a 
W.  A-  M.  cap.  8. 


330  HISTORIA  PLACITORUM  CORONiE. 

Giving  of  relief,  aid  or  comfort  to  offenders  siiall  not  be  punishable, 
unless  proved  by  two  witnesses,  that  he  had  notice  of  the  offence  at 
the  time  of  such  relief  given. 

5  Eliz.  cap.  1.  "If  any  person  dwelling,  inhabiting,  or  resiant 
within  the  queen's  dominions  or  under  her  obeysance,  shall  by  writ- 
ing, cyphering,  printing,  preaching,  deed  or  act,  advisedly  and  wit- 
tingly hold,  or  stand  with,  to  extol,  set  forth,  maintain  or  defend  the 
authority,  jurisdiction,  or  power  of  the  bishop  of  jRome,  or  his  see, 
heretofore  claimed,  used,  or  usurped  within  this  realm  or  any  dominion 
or  country  under  the  gueen's  obeysance,  or  by  speech,  open  act  or 
deed  advisedly  and  wittingly  attribute  any  such  manner  of  jurisdic- 
tion, authority,  or  preeminence  to  the  said  see  or  bishop  of  Borne  for 
the  time  being  within  this  realm  or  any  the  queen's  dominions,  then 
every  such  person,  their  procurers,  abetters  and  counsellors,  and  also 
their  aiders,  comforters  and  assistants  upon  the  purpose  aforesaid,  to 
extol  the  authority  of  the  bishop  of  Rome,  being  lawfully  convicted 
within  one  year  shall  incur  a  prasfmoiire. 

It  directs  who  shall  take,  and  give  the  oath  of  supremacy. 

Any  person  appointed  to  take  this  oath  by  this  statute  or  the 

statute  of  1  Eliz.  who  shall  refuse  to  take  the  same,  being 

r  331  "]  thereof  lawfully  indicted  witliin  one  year,  and  convict  or 

attaint  at  any  time  after,  shall  incur  a  praemunire,  16  ^.  2. 

Certificate  of  refusal  to  be  made  into  the  king's  bench  witliin 
forty  days  after  refusal;  the  king's  bench  may  proceed  to  indict  the 
party  refusing  within  a  year  by  a  jury  of  the  same  county,  where  the 
court  sits. 

If  any  person  convict  of  the  offenses  within  the  first  clause  of  the 
statute  shall  after  conviction  thereof  do  the  said  offenses  or  any  of 
them,  or  if  any  person  appointed  to  take  the  oath,  do  after  three 
months  after  the  first  tender  refuse  to  take  the  same  being  tendred  a 
second  time,  the  offender  shall  suffer  as  in  case  of  high  treason. 

Attainder  of  treason  upon  this  act  shall  not  make  corruption  of 
blood,  disherit  the  heir,  or  forfeit  dower. 

Members  of  the  house  of  commons  shall  take  the  said  oath,  other- 
wise shall  be  disabled  to  sit. 

Temporal  lords  of  parliament  shall  not  be  bound  to  take  the  bath, 
nor  subject*#o  the  penalties  for  ret^ising  the  same. 

The  charitable  giving  of  reasonable  alms  to  an  offender  without 
fraud  or  covin  shall  not  be  construed  an  abetting,  counselling,  aiding^ 
assisting,  procuring  or  comforting  of  an  offender  within  this  act: 
peers  indicted  shall  be  tried  by  peers,  as  in  other  cases  of  treason. 

No  person  compellible  to  take  the  oath  upon  second  tender,  but 
such  as  have  ecclesiastical  preferments,  or  such  as  have  offices  in 
ecclesiastical  courts,  or  such  as  refuse  wilfully  to  observe  the  orders 
established  for  divine  service,  or  such  as-  shall  deprave  the  rites  jtnd 
ceremonies  of  the  church  of  England,  or  that  shall  say  or  hear  pri- 
vate mass. 

Not  lawful  to  kill  person  attaint  m  prmmunire. 

No  person  to  be  indicted  for  aiding,  assisting,  comforting,  abetting 


HISTORIA  PLACITORUM  CORONA.  331 

any  person  for  extolling  the  power  of  the  bishop  of  Rome,  unless 
accused  by  such  lawful  proof,  as  shall  be  thought  by  the  jury  suffi- 
cient to  prove  him  guilty  of  the  offence. 
Tlie  things  observcible  upon  tliis  act, 

1.  Tho  the  indictment  for  the  refusal  of  the  oath  upon  the  first 
tender  may  be  in  the  county,  where  tlie  king's  bench  sits,  yet 

the  trial  must  be  by  a  jury  of  the  county  where  the  refusal  [332  ] 
is,  6  <S-  7  Eliz.  Dy.  234."  a  Bonner'' s  case. 

2.  If  books  extolling  the  pope's  jurisdiction  be  written  beyond  sea 
and  brought  in  hither,  it  was  ruled  by  the  advice  of  all  the  judges, 

1.  The  importer,  that  delivers  them  out  to  extol  the  pope's  authority. 

2.  He  that  reads  them,  and  in  conference  with  others  allows  them  to 
be  good,  3.  He  that  hears  the  contents,  and  in  open  speech  with 
otliers  commend  and  afiirm  them  to  be  good.  4.  He  that  hath  such 
books  in  his  custody,  and  secretly  conveys  them  to  his  friends  to  the 
intent  to  perswade  them  to  be  of  that  opinion.  5.  He  that  prints 
such  books  in  this  realm,  and  utters  them,  are  within  the  first  clause 
of  this  statute  against  extolling  of  papal  authority;  but  those  that 
receive  and  read  them  without  allowing  them  in  cpnference,  are  not 
within  this  act. 

3.  An  indictment  against  an  aider,  ^^c.  must  be,  knowing  the  prin- 
cipal to  be  a  maintainer  of  the  jurisdiction  of  the  pope,  and  contra 
furmarn  statuti  only,  is  not  sufficient.    Dy.  363.  a. 

4.  Nota  this  special  clause  of  giving  alms  not  to  make  an  aider 
or  comforter,  if  the  alms  be  reasonable,  and  without  covin,  tho  the 
offender  not  imprisoned,  nor  under  bail,  seems  to  be  but  agreeable  to 
the  common  law ;  vide  qnsa  supra  dicta  sunt  super  statutum  1 3  Eliz. 
cap.  1.  and  therefore  it  seems,  even  by  the  common  law,  if  a  physi- 
cian or  chirurgeon  minister  help  to  an  offender  sick  or  wounded  tho 
he  know  him  to  be  an  offender,  even  in  treason,  this  makes  him  not 
a  traitor,  for  it  is  done  upon  the  account  of  common  humanity,  not 
intuitu  critninis  vel  crirninosi ;  but  it  will  be  misprision  of  treason, 
if  he  know  it,  and  do  not  discover  him, 

23  Eliz.  cap.  1.  "All  persons'  whatsoever,  who  have  or  shall  have 
or  pretend  to  have  power,  or  shall  any  way  put  in  practice  to  ab- 
solve, perswade,  or  withdraw  any  of  the  queen's  subjects,  or  any 
within  her  dominions  from  their  natural  obedience  to  her  majesty, 
or  to  withdraw  them  for  that  intent  from  the  religion  now  by  her 
highness's  authority  established  within  her  highness's  dominions  to 
the  Rojnish  religion,  or  to  move  them  or  any  of  them  to 
promise  any  obedience  to  any  pretended  authority  of  the  [  333  ] 
see  of  Rome,  or  of  any  other  prince,  state  or  potentate,  to  be 
had  or  used  within  her  dominions,  or  shall  do  any  overt-act  to  that 
intent  or  purpose,  they  shall  be  adjudged  traitors;  and  the  persons 
who  shall  be  willingly  absolved,  or  withdrawn  as  aforesaid,  or  wil- 
lingly reconciled,  or  shall  promise  obedience  to  any  such  pretended 
authority,  prince,  state,  or  potentate  as  aforesaid,  they,  their  pro- 
curers and  counsellors  thereunto  shall  suffer  as  in  case  of  high  treason. 

"Aiders  and  maintainers  of  the  persons  offending,  knowing  the 


333  HISTORIA  PLACITORUM  CORONA. 

same,  or  who  shall  conceal  such  offense,  and  not  within  twenty  days 
disclose  the  same  to  some  justice  of  peace,  S^-c.  shall  forfeit  as  in  mis- 
prision of  treason:  justices  of  peace  to  have  cognisance  of  offenses, 
except  treason  and  misprision  of  treason." 

Nola  the  words  [for  that  intent)  run  througli  the  whole  clause 
of  disswading  from  the  religion  of  the  church  of  England:  vide 
postea,  statute  3  Jac.  cap.  4. 

The  religion  established  within  tiie  meaning  of  this  act  seems  to 
be  that  book  of  articles  mentioned  and  enjoined  to  be  assented  to  by 
all  men  taking  orders  by  the  statute  of  13  Eliz.  cap.  12. 

23  Eliz.  cap.  2.  "  Advised  and  malicious  speakers  of  seditious  or 
scandalous  tale  of  the  queen  of  their  own  imagination  shall  for  the 
first  offense  be  set  upon  the  pillory,  lose  both  ears  (or  at  the  offend- 
er's election  pay  two  hundred  pounds)  and  suffer  six  months  impri- 
sonment. 

"  If  any  shall  advisedly  and  with  malicious  intent  report  false, 
seditious  and  slanderous  news  or  tales  of  the  queen  of  the  reporting 
of  another,  then  to  be  set  on  the  pillory  and  lose  one  of  his  ears 
(unless  he  pay  two  hundred  marks)  and  suffer  imprisonment  three 
months:  second  offense  after  a  first  conviction  shall  be  felony  without 
clergy. 

"  If  any  shall  within  or  without  the  queen's  dominions  advisedly 
and  with  a  malicious  intent  against  the  queen  devise  and  write,  print, 
or  set  forth  any  book  or  writing,  containing  any  false,  sedi- 
[^  334  3  tious  or  scandalous  matter  against  the  queen,  or  to  the  en- 
couraging, stirring,  or  moving  any  insurrection  or  rebellion 
within  the  realm  or  dominions  thereof;  or  if  any  person  witliin  or 
without  the  realm  shall  advisedly,  and  with  a  malicious  intent  against 
the  queen  procure  or  cause  any  such  book  or  writing  to  be  written, 
printed,  published  or  set  forth,  (the  said  offense  not  being  punishable 
by  the  statute  of  25  E.  3.  concerning  treason,  or  by  any  other  statute, 
whereby  an  offense  is  made  or  declared  treason)  every  such  offense 
shall  be  judged  felony  without  the  benefit  of  clergy. 

"  If  any  person  either  within  or  without  the  queen's  dominions 
shall  by  erecting  a  figure,  casting  nativities,  prophecying,  witchcraft, 
conjurations,  or  other  like  unlawful  means  seek  to  know,  and  shall 
set  forth  by  express  words,  deeds,  or  writings,  how  long  the  queen 
shall  live,  or  who  shall  reign  after  iier,  or  maliciously  utter  any  direct 
prophecies  to  that  purpose,  or  shall  maliciously  by  words,  writings  or 
printing  wish,  will  or  desire  the  death  or  deprivation  of  the  queen, 
or  any  thing  directly  to  the  same  effect,  the  offender,  their  aiders, 
procurers  and  abetters  in  or  to  the  said  offenses  shall  suffer  as  felons 
without  the  benefit  of  clergy." 

Offenses  made  felony  by  this  act  committed  by  persons  out  of  the 
realm  shall  be  inquired,  heard  and  determined  in  the  county  where 
the  king's  bench  sits,  and  limits  the  proof  and  manner  of  proceeding; 
no  corruption  of  blood,  loss  of  dower,  or  forfeiture  of  lands  longer 
than  during  life. 

Two  witnesses  required  td  prove  words. 


HISTORIA  PLACITORUM  CORONiE.  334 

The  act  of  1  4'  2  P.  <§'  M.  and  1  Ellz.  concerning  scandalous 
words  are  repealed:  this  act  to  continue  only  faring  the  queen's 
life. 

These  things  are  observable  upon  this  act, 

1,  There  may  be  some  words  or  writings,  that  consequentially  may 
be  construed  to  stir  up  insurrection,  and  yet  are  not  within  the  statute 
of  25  E.  3.  for  this  statute  supposes  some  may  be  within  it,  and  some 
may  not. 

2.  That  casting  the  king's  nativity,  how  long  he  shall  live,  who 
shall  succeed  him,  or  using  prophecies  to  that  effect,  tho 

done  maliciously,  or  wishing  the  king's  death,  was  not  trea-  [  335  ~\ 
son  within  the  act  of  25  E.  3.  or  of  any  statute  then  in  force, 
tho  they  are  great  offenses;  for  had  they  been  treason,  this  statute 
would  never  have  made  it  only  felony,  and  that  only  during  the 
queen's  life. 

27  Eliz.  cap.  1.  "  If  any  open  invasion  or  rebellion  shall  be  made 
within  her  majesty's  dominions,  or  any  act  attempted  tending  to  the 
hurt  of  her  majesty's  person  by  or  for  any  person,  that  shall  or  may 
pretend  title  to  the  crown  after  the  queen's  death,  or  if  any  thing 
shall  be  compassed  or  imagined  tending  to  the  hurt  of  the  queen's 
person  by  any  person  or  with  the  privity  of  any  person,  that  shall  or 
may  pretend  title  to  the  crown  of  this  realm,  then  by  her  majesty's 
commission  twenty-four  privy  counsellors  and  lords  of  parliament  at 
least,  with  the  assistance  of  such  judges  of  the  courts  of  Westminster^ 
as  the  queen  shall  appoint,  or  the  greater  number  of  them,  shall  by 
virtue  of  this  act  have  authority  to  examine  all  and  every  the  offenses 
aforesaid,  and  all  circumstances  thereof,  and  thereupon  to  give  sen- 
tence^'br  judgment,  as  upon  good  proof  the  matter  shall  appear  unto 
them;  and  after  such  sentence  or  judgment  given,  and  declaration 
thereof  by  her  majesty's  proclamation  under  the  great  seal,  all  such 
persons,  against  whom  such  judgment  or  sentence  shall  be  given  or 
published,  shall  be  excluded  and  disabled  to  claim  or  pretend  to  have 
any  title  to  the  crown  of  England. 

"And  all  the  queen's  subjects  may  by  virtue  of  this  act  and  her 
majesty's  direction  by  all  possible  means  pursue  to  death  every  sacli 
wicked  person,  by  whom  such  invasion  or  wicked  act  shall  be  at- 
tempted, or  other  thing  compassed  or  imagined  against  her  majesty's 
person,  and  all  their  aiders,  comforters  and  abetters. 

Provision  is  made  in  case  the  queen  should  be  killed  by  such  at- 
tempt for  prosecution  of  the  offender,  and  exclusion  of  the  person 
offending  from  succession  to  the  crown,  4'C. 

Nota,  this  extraordinary  commission  was  issued  thus  by  authority 
of  parliament  in  relation  to  the  queen  of  Scots,  who  was  by  virtue 
thereof  sentenced  to  death  and  executed. 

This  was  but  a  temporary  act,  but  the  precedent  of  this 
commission  to  sentence  and  give  judgment  without  a  trial  [  336  ] 
by  jury,  was  the  first  of  that  nature  that  I  remember  to  have 
been  issued  by  parliament. 

21  Eliz.  cap.  2.  "It  shall  not  be  lawful  for  any  Jesuit,  seminary 


336  HISTORIA  PLACITORUM  CORONA. 

priest,  or  other  such  priest,  deacon,  or  rehgious  or  ecclesiastical  per- 
son whatsoever  being  born  within  this  realm  or  other  her  highnesses 
dominions,  and  made,  ordained  or  professed,  or  to  be  made,  ordained 
or  professed  by  any  authority  or  jurisdiction  derived,  challenged  or 
pretended  from  the  see  of  Rome  by  or  of  what  name,  title  or  degree 
soever  the  same  shall  be  called  or  known,  to  come  into,  be  or  remain 
in  any  part  of  this  realm,  or  any  of  her  highness's  dominions  after 
the  end  of  forty  days,  other  than  in  such  special  cases,  and  upon  sucli 
special  occasions  only,  and  for  such  time  only,  as  is  expressed  in  this 
act;  and  if  he  do,  then  every  such  offense  shall  be  high  treason,  and 
every  such  person  as  shall  wittingly  and  willingly  receive,  relieve, 
comfort,  aid,  or  maintain  any  such  priest,  «§'c.  being  at  liberty  and 
out  of  hold,  knowing  him  to  be  such,  shall  be  guilty  5f  felony  with- 
out clergy. 

"  If  any  of  the  queen's  subjects  (not  being  a  Jesuit,  seminary 
priest,  deacon,  or  religious  or  ecclesiastical  person)  be  brought  up  in 
any  college  or  seminary  beyond  sea,  shall  not  return  within  six 
months  after  proclamation  in  London,  and  within  two  days  after  his 
return  before  tlie  bishop  of  the  diocese,  or  two  justices  of  the  peace 
submit  to  her  majesty's  laws,  and  take  the  oath  of  supremacy,  then 
such  person,  who  shall  otherwise  return  into  this  realm  or  other  thq 
queen's  dominions,  shall  be  adjudged  a  traitor. 

"  Sending  relief  to  any  Jesuit,  seminary  priest,  or  college  of  priests 
or  Jesuits  beyond  the  seas,  or  to  one  not  returning  out  of  such  col- 
lege into  England,  shall  incur  sl  prsemwiire. 

"Every  otfense  against  this  act  shall  be  tried  in  the  king's  bench 
in  the  county  where  it  sits,  or  in  any  other  county,  where  the  otfense 
was  committed,  or  oifender  apprehended. 

"  Jf  a  Jesuit,  seminary  priest,  ^■'c.  within  three  days  after  his  arri- 
val in  the  queen's  dominions  submit  to  some  archbishop, 
[]  337  ]  bishop,  or  justice  of  peace,  and  take  the  oath  of  supremacy, 
and  by  writing  under  his  hand  profess  to  continue  obedient 
to  the  laws,  then  he  shall  not  be  subject  to  any  penalty. . 

'•  Trial  of  peers  in  the  case  of  treason,  felony,  or  praemunire  to  be 
by  peers.  '    . 

"  Any  person  knowing  such  priest  to  be  within  the  realm  contrary 
to  this  act,  and  not  discovering  it  to  a  justice  of  peace,  «§'c.  within 
tv/elve  days,  shall  be  fined  and  imprisoned  during  the  queen's  plea- 
sure, and  a  justice  of  peace  to  whom  such  discovery  is  made,  not 
informing  one  of  the  privy  council,  Sj-c.  shall  forfeit  two  hundred 
marks. 

29  Eiiz.  cap.  2.  "  No  attainder  of  treason  that  now  is,  where  the 
party  is  executed,  shall  be  reversed  for  error. 

25  Eliz.  cap.  2.  "  A  suspected  Jesuit  or  priest  refusing  to  answerr 
directly  upon  his  examination  shall  be  imprisoned  for  his  contempt, 
until  he  shall  make  direct  answer.  .  . 

And  these  are  all  the  acts  concerning  treason  in  the  queen's  time, 
that  I  reniember,  except  particular  acts  of  attainder,  whereof  some 
are  temporal,  some  perpetual. 


HISTORIA  PLACITORUM  CORONiE.  337 

In  the  time  of  king  James,  besides  the  particular  acts  touching 
the  treason  of  the  conspirators  of  the  powder-plot,  and  the  treasons 
of  the  lords  Cohham  and  Gray,  there  are  some  general  clauses 
touching  treason  in  the  statutes  of  3  Jac.  cap.  4..(^')  and  5.  and 
among  ihem  this  special  clause  which  enlarged  the  statute  of  23  Eliz. 
cup.  1.  viz. 

"  If  any  person  shall  upon  or  beyond  the  seas,  or  in  any  other 
place  within  the  dominions  of  the  king,  his  heirs  or  successors,  put 
in  practice  to  absolve,  perswade  or  withdraw  any  of  the  king's  sub- 
jects from  their  natural  obedience  to  his  majesty,  his  heirs  or  suc- 
cessors, or  to  reconcile  them  to  the  pope  or  see  of  Rome,  or  to  move 
any  of  them  to  promise  obedience  to  any  pretended  authority  of  the 
see  of  Rome,  or  any  other  prince,  state  or  potentate,  then  such  per- 
sons, their  procurers,  counsellors  and  aiders,  and  maintainers 
knowing  the  same  shall  be  adjudged  traitors,  and  likewise  [  338  ~\ 
the  persons  willingly  absolved  or  withdrawn.  4'C.  their  aiders, 
abetters,  maintainers,  8;c.  knowing  the  same  shall  be  adjudged  traitors, 
to  be  indicted  and  proceeded  against  in  any  county  where  taken,  as 
if  the  offense  were  committed  in  that  county. 

This  act  is  much  more  strictly  pen'd  against  such  offenders,  than 
the  statute  of  23  Eliz.  cap.  1,  1.  It  extends  larger  as  to  the  place 
of  such  offense.  2.  The  words  {to  that  intent)  which  bound  up 
the  statute  of  23  Eliz.  more  strictly,  are  here  omitted.  3.  The  dis- 
junctive clauses  in  this  statute  have  a  greater  latitude.  4.  It  extends 
to  maintainers  of  the  offenders  knowing  the  same. 

Neither  do  I  find  any  special  new  act  generally  touching  treason 
from  this  time  till  the  13th  year  of  king  Charles  II. 

13  Car.  2.  cap.  1. 

.1.  "If  any  person  after  24  Ju7ie  1661.  during  the  king's  life  shall 
within  the  realm,  or  without,  compass,  imagine,  invent,  devise,  or 
intend  death  or  destruction,  or  any  bodily  harm  tending  to  death  or 
destruction,  maim,  wounding,  imprisonment,  or  restraint  of  the  per- 
son of  the  king,  or  to  deprive  or  depose  him  from  the  style,  honour, 
or  kingly  name  of  the  imperial  crown  of  this  realm,  or  of  any  other 
his  majesty':?  dominions  or  countries,  or  to  levy  war  against  his 
majesty  within  the  realm,  or  without,  or  to  move  or  stir  up  any 
foreigner  to  invade  this  realm,  or  any  other  his  majesty's  dominions 
being  under  his  majesty's  obeysance,  and  such  compassings,  imagi- 
nations, inventions,  devices,  or  intentions,  or  any  of  them  shall  ex- 
press, utter,  or  declare  by  any  printing,  writing,  preaching,  or  mali- 
cious and  advised  speaking,  being  legally  convicted  thereof  upon 
the  oath  of  two  lawful  and  credible  witnesses  upon  trial,  or  other- 
wise convicted  or  attainted  by  due  course  of  law,  then  every  such 
person  shall  be  deemed  a  traitor,  and  suffer  and  forfeit  as  in  cases  of 
high  treason. 

"2.  If  any  after  24  June  1661.  during  his  majesty's  life  shall  ma- 

ig)  The  oath  of  alligeance  appointed  hereby,  and  this  statute  so  far  as  relates  to  the 
said  oath,  are  abrogated  by  1  iV.  «Sf  ill.  cap.  8. 


338  HISTORIA  PLACITORUM  CORON.^. 

licionsly  and  advisedly  publish  or  affirm,  that  the  king  is  an  heretic 
or  papist,  or  endeavours  to  introduce  popery,  or  maliciously  and  ad- 
visedly by  writing  or  speaking  shall  express,  publish,  utter 
[  339  ]  or  declare  any  words  or  things  to  incite  the  people  to  hatred 
or  dislike  of  his  majesty  or  the  established  government,  shall 
be  disabled  to  enjoy  any  office  or  promotion  ecclesiastical,  civil,  or 
military,  or  other  employment,  than  that  of  peerage,  and  suffer  such 
farther  punishment  as  may  be  by  law  inflicted. 

3.  "Any  that  shall  maliciously  and  advisedly  affirm  the  parlia- 
ment of  3  Nov.  1640.  is  yet  in  being,  or  that  there  lies  obligation 
upon  any  by  any  oath,  engagement  or  covenant  to  endeavour  a 
change  of  governmetit  in  church  or  state,  or  that  both  or  either 
house  of  parliament  have  a  legislative  power  without  the  king,  shall 
incur  the  penalty  of  2.  prsemunire  16  R.  2. 

4.  No  person  to  be  prosecuted  for  any  of, the  said  offenses,  except 
treason,  but  by  order  of  the  king  under  his  sign  manual,  or  of  the 
council,  nor  unless  prosecuted  within  six  months  after  the  ofiense, 
and  indicted  within  three  months  after  prosecution. 

5.  "  None  to  be  indicted,  arraigned,  convicted,  or  condemned  of 
any  of  the  said  offenses,  unless  the  offender  be  accused  by  two  law- 
ful and  credible  witnesses  upon  oath,  which  witnesses  upon  his 
arraignment  shall  be  brought  in  person  before  the  offender  face  to 
face  and  maintain  upon  oath  what  they  have  to  say  against  him, 
unless  the  party  arraigned  shall  willingly  without  violence  confess 
the  same. 

6.  "  This  shall  not  deprive  members  of  parliament  of  their  free 
debates. 

"  Trial  by  peers :  peer  convicted  disabled  to  sit  in  parliament  till 
his  majesty  pardon  him. (A) 

(h)  The  acts  relating  to  treason  and  offenses  of  that  nature,  which  have  passed  since 
our  author  wrote,  may  be  reduced  to  these  three  heads;  1.  Such  as  more  immediately 
relate  to  the  king  and  his  government.  2.  Such  as  relate  to  the  coin.  3.  Such  as  relate 
to  the  manner  of  trials  and  other  proceedings. 

1.  As  to  the  first,  sucli  as  relate  to  the  king  and  his  government. 

By  9  W.  3  cap.  1.  "If  any  of  the  king's  subjects,  who  have  voluntarily  gone  into 
France,  or  any  the  French  king's  dominions  in  Europe  before  1 1  Z>ec.  1688.  without 
licence  from  the  king  or  queen,  or  who  have  at  any  time  during  the  late  war  with 
France  born  arms  in  the  service  of  the  French  king,  or  who  have  since  the  Ibth  Febru- 
ary 1688.  been  in  arms  under  the  command  or  in  the  service  of  the  late  king  James  in 
Europe,  shall  return  into  this  kingdom  of  England,  or  any  other  the  king's  dominions 
without  licence  from  the  king  under  the  privy  seal,  such  person  shall  be  adjudged  guilty 
of  high  treason.     Where  the  offense  shall  be  committed  out  of  the  realm,  it  may  be 

tried  in  any  county." 
r  340  1       Upon  tills  act  these  things  are  observable. 

1.  Tliat  this  act  doth  enact  some  treasons,  which  certainly  were  so  by  25  E.3. 
as  bearing  arms  in  the  service  of  the  French  king  during  the  war  with  France,  which 
is  plainly  an  adhering  to  the  king's  enenucs ;  and  tho'  25  E-  3.  says  adhering  to  the 
king''s  enemies  in  the  realm,  yet  it  immediately  adds  giving  them  aid  and  comfort  in 
his  realm  or  elsewhere,  Co.  F.  C.p.  11.  Vaughan''8  case,  2  Salk.  635.  indeed  all  the  trea- 
sons  by  this  act  are  compounded  of  this  old  treason,  altho'  they  be  new  in  form  for  the 
sake  of  facilitating  the  proof  in  some  instances,  Hil.  2  Ann.  Boucher^s  case,  State  Tr, 
Vol.  V.  p.  511. 

2.  That  a  pardon  under  the  great  seal  (after  having  been  in  the  service  of  the  French 
king  and  before  returning)  of  all   treasons,  Sfc.  will  not  amount  to  a  licence  to  return, 


HISTORIA  PLACITORUM  CORON.E.  340 

because  it  is  the  returning,  which  is  the  treason  punishable  by  this  act.  3  Ann.  Lindsay^s 
case,  State  Tr.  Vol.  V.  p.  528. 

3.  That  a.  Scotchman  going  out  of  Scotland  into  France  (especially  if  formerly  resi- 
dent in  England)  after  the  time  mcntiou'd  in  the  act,  and  returning  into  England  is 
within  the  words  and  meaning  of  tlie  act,  even  tho'  he  had  a  licence  to  return  into 
Scotland.  Ilnd. 

4.  That  a  person  offending  against  this  act  by  returning  into  England  may  be  in- 
dicted in  any  county  where  he  is  taken,  altho'  it  be  not  the  first  English  county  into 
which  he  came.  Ihid. 

5.  That  this  act  is  perpetual  and  extends  to  the  king's  successors,  altho'  the  act  speak 
only  of  the  king  generally  and  not  of  his  successors,  according  to  the  resolution  12  Co. 
Rep.  lOl).  vide-siipra  p.  100. 

By  13  <^  14  iy.  3.  cap.  3.  "  The  pretended  prince  of  Wales  is  attainted  of  high  trea- 
son,  and  it  is  made  higli  treason  for  any  of  the  king's  subjects  by  letters,  messages  or 
otherwise  to  hold  correspondence  with  him  or  any  person  employed  by  him,  or  to  remit 
any  money  for  his  use  knowing  tlie  same.  And  by  the  17  Geo.  2.  tliis  is  extended  to  the 
pretender's  son.  Provides  that  offenses  against  this  act  committed  out  of  the  realm  may 
be  tried  in  any  county. 

^^By  1  Ann.  cap.  17.  "It  is  made  high  treason  to  attempt  by  overt  act  or  deed  to  de- 
prive or  hinder  any  person  next  in  succession  to  the  crown  (according  to  the  limitation 
of  the  crown  by  1  \V.  Sf  M.  sess.  2  cap.  2.  and  12  W.  3.  cap.  2.)  from  succeeding  after  the 
decease  of  the  queen;  but  this  succession  has  now  happily  taken  place,  and  thereby  put 
an  end  to  this  statute. 

By  3  <Sf  4  Ann.  cap.  14.  "If  any  subject,  who  has  voluntarily  gone  into  France  since 
4  May  1702.  or  into  any  the  French  king's  dominions  in  Europe  without  licence  from 
the  queen,  or  has  since  the  said  4  May  born  arms  in  the  service  of  the  French  king,  shall 
return  into  England  without  licence  from  the  queen  under  her  privy  seal,  he  shall  be  ad. 
judged  guilty  of  high  treason. 

By  4  Atin.  cap.  8.  "  It  is  made  high  treason  for  any  one  maliciously  to  affirm  by 
writing  or  printing,  that  the  pretended  prince  of  Wales,  or  any  other  person  hath  any 
right  to  the  crown  of  these  realms,  other  than  according  to  1  W.  Sf  M,  and  12  1^.3. 
or  that  the  kings  of  England  are  not  able  by  auUiority  of  parliament  to  make  laws 
to  bind  the  descent,  limitation,  inheritance  and  government  of  the  crown.  To  declare 
the  same  things  by  preaching,  teaching  or  advised  speaking  is  made  a.  pramunire. 

This  act  (which  is  in  the  main  transcribed  from  13  Eliz.  cap.  1.)  was  re-enacted  upon 
occasion  ot  the  union  6  Ann  cap.  7.  Upon  this  statute  Matthews  the  printer  was  con- 
victed and  executed  for  printing  a  pamphlet  intituled.  Vox  Fopuli  Vox  Dei,  Octob.  30.  1719. 
at  the  Old  Baily. 

By  7  Ann.  cap.  4.  "  It  is  high  treason  for  any  officer  of  the  army  or  soldier  by  land 
or  sea  to  hold  correspondence  with  any  rebel  or  enemy  to  her  majesty,  or  to  treat  with 
such  rebel  or  enemy  without  her  majesty's  licence. 

By  7  Ann.  cap.  21.  "  Whatever  is  high  treason  or  misprision  of  treason  in  England, 
(and  none  else)  shall  be  high  treason  or  misprision  of  treason  in  Scotland, 

II.  Such  as  relate  to  the  coin. 

By  8  ^  9  W.  cap.  25.  •'  Whoever  shall  knowingly  make  or  mend,  or  assist  in  making 
or  mending,  or  shall  buy  or  sell,  or  have  in  his  possession  any  instruments  proper  for  the 
coinage  of  money,  or  convey  such  instruments  out  of  the  king's  mint,  or  shall  mark  on 
the  edges  any  coin  current  or  diminished  coin  of  ihe  kingdom,  or  any  coun- 
terfeit coin  resembling  the  coin  of  the  kingdom  with  letters  or  other  marks  f  841  | 
like  to  those  on  the  edges,  of  money  coined  in  the  king's  mint,  or  shall  colour, 
gild  or  case  over  any  coin  resembling  the  current  coin  of  the  kingdom,  or  any  round 
blanks  of  base  metal,  SfC.  shall  be  guilty  of  high  treason.  No  attainder  by  this  act  shall 
work  corruption  of  blood  or  loss  of  dower,  nor  prosecution  be  for  any  offense  against  the 
same,  unless  commenced  within  three  months  after  the  offense  committed;"  this  act  was 
but  temporary. 

But  by  7  Ann.  cap.  25.  it  is  made  perpetual  and  the  time  of  prosecution  enlarged  from 
three  months  to  six  months  after  the  offense  committed. 

Other  statutes  relating  to  the  coin  enacted  since  the  edition  of  this  book  in  1736,  are 
the  15,  16.  Geo.  2.  ch.  28.  concerning  gilding,  washing  colouring,  ifcc.  coin;  and  rewards 
for  convicting  oft'enders;  and  pardon  to  accomplices  informing  : — the  11  Geo.  3.  ch.  40. 
concerning  counterfeiting  halfpence  and  farthings. — The  13  Geo.  3.  ch.  71.  concerning 
what  is  to  be  done  with  false  money. — The  14  Geo.  3.  ch,  92.  concerning  weights  liar 
coin. 


341  HISTORIA  PLACITORUM  CORONA. 

III.  Such  as  relate  to  the  manner  of  trials  and  other  proceedings. 

By  7.  IV.  3.  cap.  5.  "  Every  person  indicted  for  liigli  treason,  whereby  corruption  of 
blood  may  be  made,  shall  have  a  true  copy  of  llie  whole  indictment,  but  not  the  names 
of  the  witnesses,  delivered  to  him  five  days  before  his  trial,  paying  for  it  not  exceeding 
five  shillings,  and  shall  be  admitted  to  make  his  defence  by  counsel,  and  witnesses  on  oath, 
the  said  counsel  not  to  exceed  two,  and  to  be  assigned  by  the  court,  and  to  have  access 
to  the  prisoner  at  all  seasonable  times. 

"  No  person  shall  be  indicted,  tried,  or  attainted  but  on  the  oaths  of  two  lawful  wit- 
nesses, which  two  witnesses  must  be  to  the  same  treason,"  altho'  it  be  not  necessary  they 
should  both  be  to  the  same  overt-act. 

''  No  prosecution  to  be  for  any  such  treason  unless  the  party  be  indicted  within  three 
years  alter  the  offense  committed,  unless  it  be  for  a  design  or  attempt  to  assassinate 
the  king  by  poison  or  otherwise. 

"  The  prisoner  shall  have  a  copy  of  the  pannel  of  the  jurors  two  days  before  his  trial, 
and  shall  have  like  process  to  compel  the  appearance  of  witnesses  for  him,  as  is  usually 
granted  for  witnesses  against  him. 

"No  evidence  shall  be  given  of  any  overt-act  not  expresly  laid  in  the  indictment. 

"  No  indictment,  process,  «^c.  shall  be  quashed  for  mis-writing  mis-spelling,  false  or 
improper  Latin,  unless  exception  be  taken  in  court  before  any  evidence  given  upon  such 
indictment,  nor  shall  any  such  mis-writing,  8^c.  be  cause  to  stay  Judgment  after  convic- 
tion,  but  such  judgment  may  nevertheless  be  reversed  upon  writ  of  error,  as  before  the 
making  tliis  act. 

"  In  the  trial  of  a  peer  or  peeress  all  peers  intitled  to  vote  in  parliament  shall  be  sum-  , 
moned  twenty  days  before  the  trial,  and  every  one  so  summoned  and  appearing  shall  vote 
at  such  trial  first  taking  the  oaths  to  the  government,  ^c. 

"Provided  that  this  act  shall  not  extend  to  impeachments  or  other  proceedings  in  par- 
liament, nor  to  indictments  of  high  treason,  nor  any  proceedings  thereupon  for  counter-, 
feiting  his  majesty's  coin,  great  seal,  privy  seal,  sign  manual,  or  privy  signet. 

By  1  Ann.  cap.  9.  "  In  any  trial  for  treason  or  felony  the  witnesses  for  the  prisoner 
shall  be  upon  oath. 

By  7  Ann.  cap.  21.  "  After  the  decease  of  the  present  pretender  no  attainder  of  trea- 
son shall  work  a  disherison  of  the  hgir,  nor  affect  any  other  right,  save  that  of  the  offen- 
der  for  his  natural  life  only,  and  every  person  indicted  for  high  treason  or  misprision  of 
treason  shall  have  a  list  of  the  witnesses  to  be  produced  against  him  oh  his  trial,  and  of 
the  jury,  mentioning  the  places  of  their  abode,  ^c.  given  to  him  together  with  the  copy 
of  the  indictment  ten  days  before  his  trial,  in  the  presence  of  two  credible  witnesses,[i] 

[1]  The  following  are  the  different  Acts  of  Parliament  concerning  treason  that  have 
from  time  to  time  been  passed  since  the  7th  of  Queen  ylnne,  recited  in  the  note  above. 

By  the  20  Geo.  2.  c.  30.  persons  impeached  by  the  House  of  Commons  of  high  treason, 
whereby  corruption  of  blood  shall  be  made,  or  for  misprision  thereof,  shall  be  admitted  to 
make  their  full  defence  by  two  counsel,  who  shall  be  assigned  for  that  purpose,  in  like 
manner  as  upon  indictments  and  other  prosecutions. 

The  30  Geo.S.c  48.  alters  the  judgment  in  the  case  of  women  from  burning  to  hanging. 

By  the  36  Geo.  3.  c.  7.  s.  1.  if  any  person  after  the  day  of  passing  this  act,  during  the 
life  of  the  king  and  until  the  end  of  the  next  session  of  parliament  after  the  demise  of  the 
crown,  shall  within  the  realm,  compass,  imagine,  invent,  devise,  or  intend  deatli  or  des- 
truction, or  any  bodily  harm,  tending  to  tiie  death  or  destruction,  maim  or  wounding, 
imprisonment  or  restraint  of  the  person  of  the  king  his  heirs  or  successors:  or  to  de- 
prive or  depose  him  or  them  from  the  style,  honor  or  kingly  name  of  the  imperial  crown 
of  this  realm,  or  of  any  other  of  his  majesty's  dominions  or  countries;  or  to  levy  war 
against  his  majesty,  his  heirs  and  successors,  within  this  realm,  in  order  by  force  or 
constraint  to  compel  him  or  them  to  change  his  or  their  measures  or  counsels;  or  in 
order  to  put  any  force  or  constraint  upon,  or  to  intimidate  or  overawe  both  houses  or 
either  house  of  parliament;  or  to  move  6r  stir  any  foreigner  or  stranger  with  force  to 
invade  this  realm,  orany  other  his  majesty's  dominions  or  countries  under  the  obeisance 
of  his  majesty,  his  heirs  and  successors.  And  such  compassings,  imaginations,  inven- 
tions, devices,  or  intentions,  or  any  of  them,  shall  express,  utter,  or  declare  by  publishing 
any  ])rinting  or  writing,  or  by  any  overt 'act  or  deed  being  legally  convicted  thereof 
upon  the  oaths  of  two  lawful  witnesses  upon  trial,  or  othcrwi.se  convicted  or  attainted  by 
due  course  of  law,  then  every  such  person  shall  be  deemed,  declared,  and  adjudged  to  be  a 
traitor,  and  shall  suffer  the  pains  of  death,  and  also  lose  and  forfeit  as  in  cases  of  high 
trcaeoa.  ' 


HISTORIA  PLACITORUM  CORONA.  341 

By  the  57  Geo.  3.  c.  7.  s.  1.  the  provisions  of  the  last  act,  which  relate  to  the  heirs  and 
successors  of  tlie  king-,  are  made  perpetual. 

The  39  Sf  40  Geo.  3.  c.  93.  and  the  5  <5r  6  Vict,  c.  51.  take  away  the  ri^ht  of  the  pri- 
sioner  to  iiave  a  copy  of  the  indictment,  witli  a  list  of  the  witnesses  and  jurors  in  the  cases 
of  high  treason  in  compassing-  or  imagining  the  death  or  destruction  or  any  bodily  harm 
tending  to  the  death  or  destruction,  maiming  or  wounding  of  the  (jueen,  and  of  misprision 
of  such  treason  when  the  overt  act  alleged  in  the  indictment  shall  be  any  attempt  to  in- 
jure her  person;  in  which  case  the  prisoner  is  triable  in  the  same  manner,  and  upon  the 
like  evidence,  as  if  charged  with  murder. 

The  54  Geo.  c.  146.  alters  the  judgment  in  high  treason.  Seep.  351. 

The  9  Geo.  4.  c.  31.  s.  2.  abolishes  petit  treason,  and  makes  tliis  offence  murder.^  382. 

By  the  3  <^  4  Vict.  c.  52.  s.  4.  it  is  treason,  in  some  cases  for  any  person  to  aid  in  ob- 
taining a  marriage  with  the  queen's  issue  under  the  age  of  eighteen,  without  consent  of 
parliament. 

The  5^6  Vict.  c.  51.  s.  2.  makes  it  a  high  misdemeanor  wilfully  to  discharge  or  aim 
fire  arms,  or  to  throw  any  offensive  matter  or  weapon  with  intent  to  injure  or  alarm  the 
queen;  with  a  proviso,  that  nothing  in  that  act  contained  shall  be  deemed  to  alter  in  any 
respect  thepunishment  which  may  by  law  be  inflicted  upon  persons  guilty  of  high  trea- 
son, or  misprision  of  treason. 

The  2  Will.  4.  c.  34.  the  statute  relating  to  the  coin.  It  repeals  all  other  acts  touch- 
ing the  coin,  the  provisions  of  which  it  amends  and  consolidates  into  one  act.  See  chaps. 
17,  18,  19,  20. 

The  11  Geo.  4.  1  Will.  4.  c.  66.  s.  2  ^  1  Vict.  c.  84.  s.  1.  repeal  the  statutes  of  treason 
relating  to  the  great  seal,  sign  manuel,  signet,  SfC.  to  counterfeit  these  signatures  is  still 
treason,  though  not  punishable  with  death. 

By  the  29  seel,  of  the  act  of  Congress  of  April  30, 1790,  it  is  enacted.  That  any  person 
■who  shall  be  accused  and  indicted  of  treason,  shall  have  a  copy  of  the  indictment,  and  a 
list  of  the  jury,  and  witnesses  to  be  produced  on  the  trial  .'or  proving  the  said  indictment, 
mentioning  the  names  and  places  of  abode  of  such  witnesses  and  jurors,  delivered  unto  him 
at  least  three  entire  days  before  he  shall  be  tried  for  the  same ;  and  in  other  capital  offences, 
shall  have  such  copy  of  the  indictment  and  list  of  the  jury  two  entire  days  at  least,  before 
the  trial;  and  that  every  person  so  accused  and  indicted  for  any  of  the  crimes  aforesaid, 
shall  also  be  allowed  and  admitted  to  make  his  full  defence  by  counsel  learned  in  the 
law;  and  the  court  before  whom  such  person  shall  be  tried,  or  some  judge  thereof  shall, 
and  they  are  hereby  authorized  and  required  immediately  upon  his  request  to  assign  to 
such  person  such  counsel,  not  exceeding  two,  as  such  person  shall  desire,  to  whom  such 
counsel  shall  have  free  access  at  all  seasonable  hours;  and  every  such  person  or  persons 
accused  or  indicted  of  the  crimes  aforesaid,  shall  be  allowed  and  admitted  in  his  said 
defence  to  make  any  proof  that  he  or  they  can  produce,  by  lawful  witness  or  witnesses, 
and  shall  have  the  like  process  of  the  court  where  he  or  they  shall  be  tried,  to  compel  his 
or  their  witnesses  to  appear  at  his  or  their  trial,  as  is  usually  granted  to  compel  witnesses 
to  appear  on  the  prosecution  against  them. 

Sect.  30.  That  if  any  person  or  persons  be  indicted  of  treason  against  the  United 
States,  and  shall  stand  mute,  or  refuse  to  plead,  or  shall  challenge  peremptorily  above 
the  number  of  thirty-five  of  the  jury,  the  Court  in  any  of  the  cases  aforesaid,  shall  not- 
yvithstanding  proceed  to  the  trial  of  the  person  or  persons  so  standing  mute  or  chal- 
lenging, as  if  he  or  they  had  pleaded  not  guilty,  and  render  judgment  thereon  accor- 
dingly. 

Sect.  31.  That  the  benefit  of  clergy  shall  not  be  used  or  allowed,  upon  conviction  of 
any  crime,  for  which  by  any  statute  of  the  United  States  the  punishment  is  or  shall  be 
declared  to  be  death. 

Sect.32.  That  no  person  or  persons  shall  be  prosecuted,  tried  or  punished  for  treason 
or  other  capital  offence  aforesaid,  wilful  murder,  or  forgery  excepted,  unless  the  indict- 
ment for  the  same  shall  be  found  by  a  grand  jury  within  three  years  next  after  the  trea- 
son or  capital  offence  aforesaid  shall  be  done  or  committed.  Provided,  that  nothing 
herein  contained  shall  extend  to  any  .person  or  persons  fleeing  from  justice. 

Sect.  33.  That  the  manner  of  inflicting  the  punishment  of  death  shall  be  by  hanging 
the  person  convicted  by  the  neck  until  dead. 

On  the  trial  of  the  rebels  in  1746,  the  prisoners  had  copies  of  their  indictments  five 
days  before  their  arraignment,  exclusive  of  that  d:iy  and  of  the  days  copies  were  delivered, 
and  also  exclusive  of  the  intervening  Sunday.  Fost.  2.230.  See  Lord  George  Gordon's 
Tr.  21  St.  Tr.  648.  Dougl.  569.  An  indictment  for  treason  was  found  on  the  1 1th  of  Be. 
eember ;  on  the  12th,  copies  of  the  indictment  and  of  the  jury  panel  were  delivered  to  the 


341  HISTORIA  PLACITORUM  CORONA. 

prisoner,  and  on  the  17th  a  copy  of  the  list  of  witnesses  was  delivered  to  him.  The 
prisoner  was  arraigned  on  the  31st  of  December  and  pleaded;  and  upon  the  first  witness 
being  called  for  the  crown,  it  was  objected  that  the  list  of  witnesses  had  not  been 
delivered  according  to  the  statute.  Upon  a  case  reserved,  it  was  held  by  nine  judges  to 
six,  that  the  delivery  of  the  list  was  not  a  good  delivei'y  in  point  of  law  ;  but  it  was  also 
held  by  a  like  majority,  that  the  objection  came  too  late  after  plea  pleaded.  And  it  was 
agreed  by  all  the  judges,  that  if  the  objection  had  been  taken  in  due  time,  the  only  effect 
of  it  would  have  been  a  postponement  of  the  trial,  to  give  time  for  a  proper  delivery  of 
the  list.  R.  v.  Frost,2  Mood.  C.  C.  140.  9  C.  S(  P.  129.  In  the  case  of  the  Insurgents, 
2  Dall.  342.  it  was  held  that  copies  of  the  caption  as  well  as  of  the  indictment  ought  to 
be  delivered  to  the  defendant  under  the  Act  of  Congress.  It  was  also  held  that  the 
place  of  abode  of  the  jurors  and  witnesses  should  be  clearly  designated.  The  object  of 
the  law  is  to  enable  the  party  accused  to  prepare  for  his  defence;  and  to  identify  the 
jurors  who  try  and  the  witnesses  who  are  to  prove,  the  indictment  against  him.  It  is 
contrary  to  tlie  spirit  and  intent  of  such  a  provision  that  the  whole  range  of  the  state  or 
of  a  county,  should  be  allowed  as  descriptive  of  a  place  of  abode.  In  regard  to  the  place, 
the  court  tliought  the  township  in  which  the  jurors  and  witnesses  respectively  reside, 
should  be  specified  ;  but  the  act  of  Congress  does  not  require  a  specification  of  their  occu- 
pations. See  Dorr's  Tr.  7.  1  East,  P.  C.  11 1.  Steimrrs  case,  2  Dall.  335.  The  29  sect. 
of  the  act  of  Congress  has  been  construed  to  mean  that,  any  person  charged  with  a 
crime  in  the  courts  of  the  United  States,  has  a  right  before,  as  well  as  after  the  indict- 
ment to  the  process  of  the  court  to  compel  the  attendance  of  his  witnesses.  1  Burr's 
Tr.  126,  • 


[  342  ]  CHAPTER  XXVI. 

CONCERNING  THE    JUDGMENTS  IN  HIGH    TREASON  AND    THE    PARTICU- 
LARS RELATING  THEREUNTO,  AND  TO  ATTAINDERS. 

This  chapter  divides  itself  into  these  particulars:  1.  Touching  the 
person  against  whom  the  judgment  is  to  be  given.  2.  By  whom  it  is 
to  be  given.  3.  What  the  form  of  the  judgment  is.  4.  What  the  con- 
sequents thereof  are. 

I.  Touching  the  person,  against  whom  a  judgment  in  treason  is  to 
be  given. 

In  antient  time,  if  a  man  had  been  slain  in  open  war  against  the 
king  either  in  rebellion,  or  adhering  to  the  king's  enemies,  the  king 
did  de  facto  take  a  forfeiture,  sometimes  by  presentment  in  Eyre^ 
sometimes  by  presentment  in  (he  king's  bench,  and  sometimes  by 
inquisition  by  the  eschetor:  for  this  see  the  whole  pleading  in  the 
chancery.  Clans:  29  E.  3.  M.  2.  S;  4.  for  the  coheirs  of  Robert  de  Ross 
for  the  manor  of  Werk. 

But  in  all  other  cases,  whether  of  felony  or  treason,  if  the  party 
had  died  before  attainder,  tho  he  were  killed  in  the  pursuit,  Claus. 
26  E.  3.  m.  29.  pro.  Ricardo  filio  Adse  Peschall ;  and  //.  16  A'  1, 
Rot.  27.  coram  regc.  Sussex,  pro  SlepJiano  Nor i hup'  M.  20  4"  21 
E.  1  Rot.  4  in  dors,  coram  rege  pro  Johanne  de  Beking- 
r  343  3  ham,  or  tho  he  died  after  conviction  and  before  judgment, 
7  //.  4.  27.  a.  there  ensued  neither  attainder  nor  forfeiture 
of  lands. 

But  the  law  was  practised  antiently,  and  it  seems  continuing  to 
this  day,  if  a  traitor  or  a  felon  rescue  iiimself,  or  will  not  submit  to 
be  arrested  and  on  resistance  is  slain,  upon  presentment  thereof  he 


HISTORIA  PLACITORUM  CORONA.  343 

shall  forfeit  his  gooJs  and  chatties,  3  E.  3.  Corone  290,  312.  Co. 
P.  C.  p.  227.  for  if  a  person  be  arraigned  for  felony  or  treason,  tho 
he  be  acquired,  yet  if  it  be  fouijd  he  fled,  he  forfeits  his  goods,  and 
this  is  but  in  nature  of  a  presentent  oifugam  fecit. 

But  whether  that  presentment  be  traversable,  vide  Stamf.  P.  C. 
Lib.  III.  cap.  21. 

Yet  the  former  practice  by  degrees  grew  out  of  use,  for  in  8  E.  3. 
20.  a.  the  judges  would  not  allow  an  averment,  that  a  party  died 
in  rebellion  or  adhering  to  the  king's  enemies,  without  a  record  of 
his  conviction,  for  it  is  possible  he  might  be  there  against  his  will. 

But  now  by  the  statute  of  25  E.  3.  de  proditionibus,  which  re- 
quires an  attainder  by  conviction  and  attainder  per  gents  de  lour 
condition  that  attainder  after  death  for  adhering  to  the  king's  ene- 
mies is  ousted. 

And  because  it  might  be  said,  that  an  inquest  before  the  eschetor 
might  satisfy  those  words,  the  statute  of  34  E.  3.  cap.  12. 
hath  in  express  terms  for  the  future  ousted  such  attainders  f  344  3 
or  convictions  after  the  parties  death,  at  least  in  other  cases 
than  of  forfeitures  of  war,  and  except  forfeitures  of  old  times  judged 
after  the  parties  death  by  presentment  in  Eyre,  or  in  the  king's 
bench,  as  of  felons  of  themselves;  and  therefore  Jack  Cade,  who 
was  slain  in  open  rebellion,  could  not  be  attaint  but  by  act  of  parlia- 
ment, and  so  it  is  recited  in  the  act  of  his  attainder  29  H.  6.  cap.  1. 

Yet  after  the  statute  of  34  E.  3.  the  earl  of  Salisbury  and  others, 
who  conspired  against  Henry  IV.  and  levied  war  against  him,  and 
in  their  flight  were  taken,  had  their  heads  stricken  oft'  by  those  that 
apprehended  them,  without  any  judgment  given  against  them,  and 
after  their  death  judgment  of  treason  was  given  against  them  by  the 
king  and  lords  in  parliament,  Rot.  Par.  2  H.  4  n.  30.  upon  which 
the  heir  of  the  earl  of  Salisbury  brought  a  petition  of  error,  Rot. 
Par.  2  H.  5.  /;«/'/,  1.  m.  13.  and  assigned  for  error  among  other 
errors,  that  his  ancestor  was  dead  at  the  time  of  the  judgment  given 
in  parliament,  but  yet  the  judgment  was  affirmed;  yet  afterwards 
Rot.  Par.  9  H.  5.  n.  19.  to  avoid  all  questions  he  was  restored  by 
act  of  parliament. 

Again,  no  man  ought  to  be  attainted  of  treason  without  being 
called  to  make  his  defense  and  put  to  answer,  which  is  called  arre- 
natio  or  ad  rationeni  positus. 

Claus.  1  E.  3.  part.  1.  7n.  21.  dors.  Thomas  earl  of  Lancaster 
was  condemned  to  death,  as  a  traitor  by  Edward  II.  at  Poniefract, 
Henry  his  brother  brought  a  petition  of  error  in  the  parliament  of 
1  ^.  3,  upon  that  judgment,  the  record  was  removed  in  these  words. 

"  Placita  coronae  coram  domino  Edwardo  rege  filio  domini  regis 
Edwardi  tenta  in  prassentia  ipsius  domini  regis  apud  Pontem-fractuni 
die  lunse  proxime  ante  festuni  aimunciationis  beatas  Marise  virginis 
anno  regni  sui  quintodecimo. 

*'  Cum  Thomas  comes  Lancastriag  caplus  pro  proditionibus,  homi- 
cidiis,  incendiis,  depredationibus,  &  aliis  diversis  feioniis  ductus  esset 
coram   ipso  domino  rege,  prasentibus  Edmundo  comite   Kani^^ 


344  HISTORIA  PLACITORUM  CORONA. 

Johanne  comite  Richemund\  Aclomaro  de  Valencia  comite  Pern- 
hroch\  Johanne  de  Warennd  com'  Surr\  Edmundo  com' 
\_  345  ]  Arundell\  David  com'  Al^ol,  Roberto  comite  de  Jinegos, 
baronibus  &  aliis  magnatibus  regni,  dominus  rex  recordatur, 
quod  idem  Thomna  homo  ligens  ipsius  domini  regis  venit  apud 
Burton  super  Trentam  simul  cum  Humfr^o  de  Bohiin  nuper  com' 
Herep,  proditore  regis  &  regni  invento  cum  vexillis  explicatis  apud 
Pontem  Burgi  in  bello  conlra  dominum  regern,  &  ibidem  interfecto, 
&  Kogero  Damory  proditore  adjudicafo,  &  quibusdam  aiiis  prodito- 
ribus  &  inimicis  regis  &  regni  cum  vexillis  explicatis,  &  ut  de  guerrS 
hostiliter  resistebat  <§•  impedivit  ipsum  dominum  regem  &  homines 
&  familiares  suos  per  tres  dies  continuos,  quo  minus  pontem  dictae 
villas  de  Burton  transire  potuerunt,  &c. — Et  unde  dominus  rex, 
habito  respectii  ad  tanta  dicti  Thomx  comitis  facinora,  &  iniquitates 
ejus,  &  ejus  maximam  ingratitudinem,  nullam  habnit  causam  ad 
aliquam  gratiam  eidem  Thomse  comiti  de  poenis  prasdictis  super 
ipsum  adjudicatis  pardonand'  in  prsemissis  faciend',  quia  tamen  idem 
Thomas  comes  de  parentela  excellenti  &  nobilissima  procreatus  est, 
dominus  rex  ob  reverentiam  dictae  parentelas  remittit  de  gratia  suei 
speciali  praedicto  Thomse  comit  executionem  duarum  poenarum  ad 
judicatarum,  sicut  praedictum  est,  scilicet  quod  idem  Thomas  comes 
non  trahatur,  neque  suspendatur,  sed  quod  .executio  tantummodo 
fiat  super  ipsum  Thomam  comitem,  quod  decapitetur. 

"Thereupon  the  record  being  read  in  praesentia  domini  regis  pro- 
cerum  &  magnatum  regni  &  aliorum  in  hoc  parliamento,  he  assigned 
these  errors:  1.  Quod  erratum  est  in  hoc,  quod  cum  quicunque  homo 
ligeus  domini  regis  pro  seditionibus,  homicidiis,  robberiis,  incendiis  & 
aliis  feloniis  tempore  pacis  captus,  &  in  quacunque  curia  regis  ductus 
fuerit,  de  hujusmodi  seditionibus  &  aliis  feloniis  sibi  impositis,  per 
legem  &  consuetudinem  regni  arrenari  debet,  &  ad  responsionem 
poni,  &  inde  per  legem  &c.  convinci,  antequam  fuerit  morii  adjudica- 
tus;  licet  prasdictus  Thomas  comes,  homo  ligeus  praedicti  domini  regis 
patris,  &c.  tempore  pacis  captus,  &  coram  ipso  rege  ductus  fuit,  dictus 
dominus  rex  pater,  &c.  recordabatur  ipsum  Thomam  esse  culpabilem 
de  seditionibus  and  feloniis  in  praedictis  recordo  &  processu 
[  346  ]  contentis,  absque  hoc,  quod  ipsum  inde  arrenavit  seu  ad  re- 
sponsionem posiiit,  prout  moris  est  secundum  legem,  &c. 
&  sic  absque  arrenamento  &  responsione  idem  Thomas  erronic^,  & 
contra  legem  terrjB  tempore  pacis  morti  extitit  adjudicatus,  unde  cum 
notorium  sit  &  manifestum,  quod  totum  tempus,  quo  impositum  fuit 
eidem  comiti  pra^dicta  mala  &  facinora  in  prasdictis  recordo  &  pro- 
cessu contenta  fccisse,  &  etiain  tempus,  quo  captus  fuit,  &  quo  dictus 
dominus  rex  pater  recordabatur  ipsum  esse  culpabilerii,  &c.  &,  quo 
morti  extitit  adjudicatus,  fuit  tempus  pacis,  maxime  cum  per  totum 
tempus  praedictum  cancellaria  &  -aliae  placeae  curiae  domini  regis 
apertcu  fuerunt,  &  in  quibus  lex  cuicunque  fiebat,  prout  fieri  consue- 
vit,  nee  idem  dominus  rex  unquam  in  tempore  illo  cum  vexillis  ex- 
plicatis equitabat,  pruidictus  doinimis  rex  pater,  &c.  in  hujusmodi 
tempore  pacis  contra  ipsum  comitem  sic  recordari  non  debuit,  nee 


HISTORIA  PLACITORUM  CORONiE.  346 

ipsnm  sine  arrenamento  &  responsione  morti  adjadicasse.  Dicit 
etiam,  2.  Qnod  erratum  est  in  hoc,  quod  cum  praidictus  Thomas 
comes  fuisset  unus  parium  &  magnatCun  regni,  &  in  Magna  Carta  de 
libertatibus  Jlnglhe  contineatur,  quod  nuUus  liber  homo  capiatur, 
imprisonetur,  ant  disseisietur  de  lihero  tenemenlo  suo,  vel  liberta- 
tibus^ seu  liberis  consuetiidinibus  stn's,  aut  ittlagetiir,  aut  exulet, 
nee  aliquo  m.odo  destritatitr,  nee  dominus  rex  super  eum  ibit,  nee 
super  eum  miftet,  nisi  per  legale  judicium  parium  suorum,  vel  per  _ 
legem  terrx,  prasdictus  Thomas  comes  per  recordum  regis,  ut  prse- 
dictum  est,  tempore  pacis  erronice  morti  fuit  adjudicatus  absque 
arrenamento  seu  responsione,  seu  legali  judicio  parium  suorum,  con- 
tra legem,  &c.  &  contra  tenorem  Magnae  Cartse  prsedictge:  and  there- 
fore, as  brother  and  heir  of  Thomas,  prays  that  the  judgment  be 
annulled,  and  he  restored  to  his  inheritance,  &  quia  inspectis  &  ple- 
nius  intellectis  recordo  &  processu  praedictis,  &c.  ob  errores  praedictos 
&  alios  in  eisdem  recordo  &  processu  compertos  consideratum  est  per 
ipsum  dominum  regem,  proceres,  magnates  &  totam  communitatem 
regni  in  eodem  parliamento,  quod  prsedictum  judicium  contra  pree- 
dictum  Thomam  comitem  redditum  tanquam  erroneum,  re- 
vocetur  &  adnulletur,  &  quod  praedictus  Henricus,  ut  frater  [  347  ]j 
&  hagres  ejusdem  Thomse  comitis,  ad  hasreditatem  suam 
petendam  &  habend'  debito  processu  inde  faciend',  prout  moris  est, 
admittatur,  &  habeat  brevia  cancellariae,  &  quod  justic',  in  quorum 
placeis  dicta  recordum  &  processus  irrotulantur,  eadem  recordum  «& 
processus  irritari  faciunt  &  adnullari,  &c.  P.  15  E.  2.  B.  R.  Rot.  69. 
&r  Pasch.  39  E.  3.  Rot.  49.  coram  Rege. 

This  notable  record,  even  before  the  statute  of  25  E.  3.  gives  us 
an  account  of  these  things:  1.  That  in  time  of  peace  no  man  ought 
to  be  adjudged  to  death  for  treason,  or  any  other  offense  without 
being  arraigned  and  put  to  answer.  2.  That  regularly,  when  the 
king's  courts  are  open,  it  is  a  time  of  peace  in  judgment  of  law. 
3.  That  no  man  ought  to  be  sentenced  to  death  by  the  record  of  the 
king  without  his  legal  \na.\  per  pares.  4.  That  in  this  particular  case 
the  commons,  as  well  as  the  king  and  lords,  gave  judgment  of  the 
reversal. 

John  Matravers  was  attainted  of  treason  in  the  parliament  of 
4  E.  3.  n.  3.  for  the  death  of  the  earl  of  Kent,  as  hath  been  before 
shewn,  cap.  ll.p.  82.  in  his  absence,  Rot.  Par.  21  E.  3.  n.  65.  dors. 
the  same  John  Matravers  sued  in  parliament  to  reverse  that  judg- 
ment, and  assigned  for  error,  qilest  adjudge  a  m.ort  in  iin  parlement 
tenus  a  Westminster  en  /'  absence  de  lui,  nient  indite,  nient  arayne, 
ne  appell  a  respons,  countre  le  ley  de  realm  <§•  les  usages  approves; 
he  did  not  prevail  in  that  parliament  but  Rot.  Par.  25  E.  3.  n.  54 
4'  55.  he  had  a  restitution  by  the  king  confirmed  in  parliament. 

Roger  Mortimer  eai\  of  Alar ch  was  condemned  for  treason  for  the 

death  of  king  Edward  II.  Rot.  Par.  4  E.  3.  n.  1.  his  cousin  and  heir 

Roger  Mortimer,  Rot.  Par.  28  E.  3.  n.  9  <§•  10.  brought  a  petition 

of  error  upon  that  judgment,  whereupon  the  record  of  his  attainder 

VOL.  I. — 33 


347  HISTORIA  PLACITORUM  CORONA. 

was  removed  into  parliament,  and  there  entred  of  record,  and  errors 
assigned;  the  judgment  of  reversal  is  thereupon  given  in  this  form. 

"  Les  queux  record  &  judgment  lues  &  examine  in  plein  parlement 
le  dit  Roger  cosin  &  heyre  de  dit  counte  dit  &  alledge,  qe  les  record  & 
judgment  susdit  sont  erroynes  &  defective  in  touts  points,  & 
r348  ]  nosment  en  tant  come  le  dil  counte  estoit  myse  a  mort  &  dis- 
herite  sans  nul  accusement  &sans  estre  mesne  en  judgment, 
ou  en  respons,dont  il  prie,qe  les  record  &  judgment  avant  dits  soient 
revers  and  adnulls,&  sur  ceo  ove  bone  deliberation  ed  avise  ed  grant 
leisure  per  nostra  dit  seigneur  le  roy,  prelates,  prince,  &  dues,  countes, 
&  barons  avant  dit,  il  peirt  clereraent,  qe  mesmes  les  judgment  & 
records  sont  erroynes  &  defectives  en  touts  points,  par  quoi  nostredit 
seigneur  le  roy  &  les  dits  prelates,  prince,  dues,  countes,  &  barons 
par  ^cord  des  chivalers  des  countes  &  des  commons  repellent,  & 
anyetitissent,  &  pur  erroyn  &  irrit  adjuggent  les  records  &  judgment 
susdits,"  and  restore  Roger  the  petitioner  to  the  title  of  earl  of  March, 
and  to  the  lands,  4'C.  of  his  grandfather. 

But  if  the  party  accused  declined  his  appearance,  it  is  true  then, 
that  the  law  of  the  land  is,  that  he  should  be  proceeded  against  to  an 
outlawry,  and  may  thereby  be  attainted  by  process  of  outlawry  with- 
out answer,  for  he  declines  it  by  his  own  default. 

And  sometimes  there  was  a  more  compendious  way,  namely,  the 
issuing  of  a  proclamation-writ  to  appear  in  a  month,  two,  or  three  in 
the  court  of  king's-bench,  or  that  in  default  thereof  the  party  should 
be  attainted  of  treason  or  such  other  oftense,  wherewith  he  was 
charged;  and  this  was  frequently  done  by  act  of  parliament  in  par- 
ticular cases,  not  unlike  the  process  enacted  in  case  of  an  assault  upon 
a  member  of  parliament  by  the  statute  of  5  H.  4.  cap.  6.  and  11  H.Q. 
cap.  11. 

Sometimes  the  lords  house  did  make  such  a  direction,  as  in  the  case 
of  Talbot,  Rot.  Par.  17  R.  2.  mention'd  before,;??.  265.  but  it  could 
not  be  effectual  to  attaint  the  party  upon  his  default  of  appearance 
upon  the  return  of  proclamation  without  act  of  parliament,  or  process 
of  outlawry. [1] 

Again,  as  a  man  could  not  be  attainted  of  treason  without  arraign- 

[1]  By  Art.  1.  Sect.  9.  of  the  Constitution  of  the  United  States,  no  Bill  of  Attainder, 
or  ex  post  facto  law  shall  be  passed.  The  same  provision  may  be  found  in  the  Consti- 
tutions of  Maine,  Vermont,  Connecticut,  New  Jersey,  Pennsylvania,  Maryland,  South  Ca- 
rolina,  Mississippi,  Alabama,  Sf  Mickiiran.  Before  the  Articles  of  Confederation  were , 
ajjrccd  to,  Congress  had  recommended  to  the  several  States  to  confiscate,  as  soon  as 
jniffht  be,  and  to  make  sale  of  all  the  real  and  personal  estates  therein,  of  their  inhabi- 
tants, and  otlier  i)ersons  vvlio  had  forfeited  the  same,  and  the  right  to  protection  of  their 
respective  States.  In  consequence  of  this  recommendation,  several  of  the  States  passed 
acts  to  confiscate  the  estates  of  persons  inimical  to  the  independence  and  liberties  of  the 
United  States  within  such  States.  1  />«//.  .53.  401.  During  the  revolutionary  war,  says 
Mr.  Justice  Story,  bills  of  attainder  were  passed  to  a  wide  extent;  and  the  evils  resulting' 
therefrom",  were  supposed,  in  times  of  more  cool  reflection,  to  have  far  outweiglied  any 
imagined  good.  I'he  injustice  and  inifiiiity  of  such  acts,  in  general,  constitute  an  irre- 
sistible argument  against  the  existence  of  the  power.  In  a  lice  government  it  would  be 
intolerable;  and  in  the  hands  of  a  reigning  (action,  it  might  bo,  and  possibly  would  be, 
abused  to  the  ruin  and  death  of  the  most  virtuous  citizens.    Story  on  Const.  211.  239. 


HISTORIA  PLACITORUM  CORON.E.  343 

ment,  if  present,  or  process  of  outlawry,  if  absent,  so  neither  could 
he  be  arraigned  without  an  accusation;  and  this  accusation  was  of 
three  kinds:  1.  If  he  were  taken  with  the  mainouer.  2.  By  way  of 
appeal.     3.  By  way  of  indictment. 

1.  In  antient  time,  sometimes  as  well  in  case  of  treason, 

as  in  case  of  felony  a  man,  that  was  taken  cum  maun  opere,  f  349  1 
was  thereupon  arraigned,  an  instance  we  have  thereof,  T.  10. 
E.  2.  Rot.  132.  Bucks  cited  before;;?.  186. 

But  this  is  wholly  disused  and  ousted  by  the  statutes  of  5  E.  3. 
cap.  9.  and  25  E.  3.  cop.  4.  by  which  statutes  none  shall  be  put  to 
answer  without  indictment  or  presentment  of  good  and  lawful  men 
of  the  neighbourhood. 

2.  By  appeal,  and  this  was  usual  at  common  law,  as  appears  by 
Britton,  cap.  22.  but  this  kind  of  proceeding  by  appeal  in  the  king's 
ordinary  courts  in  cases  of  treason  hath  been  long  disused,  and  it 
seems  is  wholly  taken  away  by  the  statutes  of  5  and  25  E.  3.  above- 
mentioned.[2] 

But  yet  notwithstanding  that  course  of  appeal  continued  still  in 
parliament,  as  appears  by  several  instances,  especially  in  the  great 
appeal  of  treason  by  the  lords  appellants  in  11  and  21  ^.  2.,{d)  but 
by  the  statute  of  1  H.  4.  cap.  14.  all  appeals  in  parliament  are  wholly 
taken  away,  and  accordingly  upon  reference  to  the  judges  upon  the 
impeachment  made  in  the  lord's  house  by  the  earl  o{  Bristol  against 
the  earl  of  Clarendon  in  the  present  parliament,  it  was  resolved  and 
reported  by  all  the  judges.(e) 

But  yet  that  statute  hath  not  taken  away  impeachments  by  the 
house  of  commons  in  cases  of  treason  or  other  misdemeanors,  and 
therefore  tho'  since  1  H.  4.  cap.  14.  all  appeals  of  treason  by  par- 
ticular persons  are  taken  away,  and  have  been  wholly  disused,  yet 
impeachments  by  the  commons  have  been  ever  since  very  frequently 
used,  because  they  are  rather  in  the  nature  of  grand  indictments,  than 
appeals. 

3.  By  way  of  indictment,  this  is  the  regular  and  legal  way  of  pro- 
ceeding in  case  of  treason. 

And  thus  far  for  the  persons  against  whom  judgment  of  treason 
may  be  given,  and  the  manner  of  deducing  them  unto  judgment. 

II.  As  touching  the  persons,  by  whom  judgment  of  treason  may 
be  given;  this  concerns  more  especially  the  jurisdiction  of  courts:  a 
word  touching  it, 

1.  Justices  of  peace  cannot  regularly  arraign,  try  or  give 
judgment  in  case  of  treason,  unless  in  such  cases,  as  are  by   [SSO] 
special  act  of  parliament  committed  to  their  cognizance,  as 

(rf)  state  Tr.Vol.  I.  p.  4.  (e)  State  Tr.  Vol.  II.  p.  552. 

[2]  In  1631  there  was  a  trial  by  battle  awarded  in  the  court  of  chivalry,  on  an  appeal 
of  treason  beyond  the  seas.  Lord  Rea  v.  David  Ramsey,  Rushworth,  vol.  2.  part.  2.  p.  112. 
But  it  is  expressly  taken  away  by  the  59  Geo.  3.  c.  46.  which  enacts,  that  it  shall  thence. 
forth  not  be  lawful  for  any  person  to  sue  an  appeal  for  treason,  murder,  felony,  or  other 
offence.     This  act  was  occasioned  by  Thornton's  case.  1  B.  Sf  Aid.  405. 


350  HISTORIA  PLACITORUM  CORONA. 

26  H.  8.  cap.  6.  5  Eliz.  cap.  1.13  Eliz.  cap.  2.  23  Eliz.  cap.  1.  and 
some  others,  because  their  commission  extends  not  to  it,  yet  they  may 
take  examinations  touching  treason  in  order  to  the  discovery  thereof 
and  preservation  of  the  peace. 

2.  Justices  of  or/er  and  terminer  may  give-  judgment  in  case  of 
high  treason,  for  it  is  expressly  witliin  their  commission. 

3.  Justices  of  goal-dehvery  may  give  judgment  in  case  of  treason 
on  any  person  in  prison  before  them,  and  that  is  proved  by  the  sta- 
tute of  1  E.  6.  cap.  7.  and  by  the  constant  practice. 

4.  Justices  of  Nisi prius  may  give  judgment  in  case  of  treason  by 
the  statute  of  14  H.  6.  cap.  1.  but  quxre,  whether  it  be  barely  by 
force  of  that  commission,  or  whether  it  must  be  by  virtue  of  some 
other  commission. 

5.  Justices  of  the  king's  bench  in  the  court  of  king's  bench  may 
give  judgment  in  case  of  treason,  for  it  is  the  highest  court  of  ordi- 
nary justice,  especially  in  criminals. 

6.  If  a  peer  be  indicted  and  plead  not  guilty  to  his  indictment, 
and  is  tried  by  his  peers  and  found  guilty,  the  lord  steward  com- 
missionated  by  the  king  for  that  office  gives  the  judgment,  and 
orders  execution. 

7.  If  a  peer  be  tried  in  parliament  by  the  lords,  they  usually  elect 
a  person  to  be  lord  steward  to  gather  up  their  votes  and  pronounce 
the  judgment,  but  for  the  most  part  that  steward  so  elected,  tho  in 
parliament,  is  commissionated  by  the  king  under  his  great  seal ;  but 
of  this  more  hereafter. 

III.  I  come  to  the  form  of  the  judgment. 

The  judgments  in  case  of  treason  are  of  two  kinds,  viz.  the  solemn 
and  severe  judgment,  and  the  less. 

The  solemn  or  severe  judgment  against  a  man  convict  of  high 
treason  is  set  down,  Co.  P.  C.p.  210.  Stamf.  Lib.  III.  cap.  19,(/) 
1  H.  1.  24.  a  Stafford's  case  4'  alibi,  "  Et  super  hoc  visis  &  per 
curiam  hie  intellectis  omnibus  &  singulis  prsemissis  consideratum  est, 
1.  Quod  praedictus  R.  usque  furcas  T.  trahatur.[3]  2.  Ibi- 
r  351  ]]  dem  supendatur  per  collum,  &  vivus  ad  terram  prosternatur. 
3.  Interiora  sua  extra  Ventrem  suum  capiantur.  4.  Ipsoque 
vivente(,g-)  comburantur,  &  5.  Caput  suum  amputelur.  6.  Qiiodque 
corpus  suum  in  quatuor  partes  dividatur.  7.  Et  quod  caput  &  quar- 
teria  ilia  ponantur,  ubi  dominus  rex  ea  assignare  voluerit.[4] 

(/)p.  182.fl. 

{g)  These  words  are  so  material,  that  the  judgment  was  reversed  for  want  of  them  in 
the  case  of  Walcot.  35  Cor,  2.  Show.^Ca.  Pari.  127.  1  Sulk.  632. 

[3]  Tiie  "drawinjr"  in  the  judsrmcnt  for  treason,  was  performed  by  tying  the  culprit's 
feet  to  the  horse's  tail  and  drag^irig-  liirn  along  the  ground.  Luders.  151. 

[4]  By  tlie  54  Oeo.  3.  c.  14G.  untitled,  "An  act  to  alter  the  punishment  in  certain 
cases  of  high  treason,"  after  reciting  the  judgment  formerly  required  by  the  law  in  high 
treason,  it  is  enacted,  " 'i'hat  in  all  cases  of  high  treason,  in  which,  as  the  law  now 
stands,  the  sentence  or  judgment  ordained  by  law  is  as  aforesaid,  the  sentence  or  judg- 
ment  to  he  pronounced  or  awarded,  from  and  after  the  passing  of  this  act,  against  any 
person  convicted  or  adjudged  guilty,  shall  be,  that  such  ])erson  shall  be  drawn  on  a 
hurdle  to  the  place  of  execution,  and  be  there  hanged  by  the  neck  until  such  person  b& 


HISTORIA  PLACITORUM  CORONA.  351 

The  king  may  and  often  doth  discharge  or  pardon  all  the  punish- 
ment, except  beheading,  and  in  as  much  as  that  is  part  of  this  judg- 
ment,  it  may  be  executed  by  the  king's  special  command,  tho  the 
rest  be  omitted. 

In  the  case  of  a  woman  her  judgment  is  to  be  drawn  and  burnt, 
as  well  in  high  treason,  as  petit  treason,  and  she  is  neither  hanged 
nor  beheaded. [5] 

The  less  solemn  judgment  is  only  to  he  drawn  and  hanged,  and 
this  is  regularly  the  judgment  in  case  of  counterfeiting  the  coin  of 
this  kingdom,  for  that  was  the  judgment  in  that  case  at  common 
law,  which  was  not  altered  by  the  statute  of  25  E.  3.  viz.  "  Super 
quo  visis,  &c.  consideratum  est,  quod  B.  usque  furcas  de  T.  trahatur, 
&  ibidem  suspendatur  per  collum,  quousque  mortuus  fuerit." 

But  the  judgment  in  that  case  also  for  a  woman  is  to  be  drawn  and 
burnt,  25  E.  3.  85.  h. 

And  it  seems  the  same  judgment  was  also  for  importing  counter- 
feit coin,  and  yet  that  was  not  treason  at  common  law. 

And  the  same  judgment  was  for  counterfeiting  the  great  or  privy 
seal  at  common  law,  as  may  be  easily  gathered  out  of  Bracton, 
Lib.  III.  de  Corona,  cap.  3.  but  expressly  by  Fleta,  Lib.  I.  cap.  22. 
Crimen  falsi  dicitur,  cum  quis  accusatus  fnerit  quod  sigillum  regis, 
vel  appellatus,  quod  sigillum  domini  sui  de  cujus  familia  fuerit,  faisa- 
verit,  &  brevia  inde  consignaverit,  vel  cartam  aliquam  vel  literam 
ad  exhacredationem  domini  vel  alterius  damnum  sic  sigillaverit,  & 
-quibns  casibus,  si  quis  inde  convictus  fuerit,  detractari  meruit  &  sus- 
pends 

And  accordingly  the  like  judgment  hath  been  given,  as  in  case 
of  petit  treason,  for  counterfeiting  the  great  seal  after  the 
statute  of  25  E.  3.  as  appears  by  2  H.  4.  25.  and  the  record  [  352  ] 
is  accordingly  ;(A)  and  tho  it  is  true  my  lord  Coke  saith,  it  is 
a  mistake  Co.  P.  C.  p.  15.  yet  I  rather  think  it  was  a  mistake  in  my 
lord  Coke,  and  that  the  judgment  may  be  given  either  way,  viz,  dis- 

(Ji)   Vide  supra  in  nolis  p.  181. 

dead ;  and  that  afterwards  the  head  shall  be  severed  from  the  body  of  such  person,  and 
the  body  divided  into  four  quarters,  shall  be  disposed  of  as  his  majesty  and  his  suc- 
cessors shall  think  fit." 

Sect.  2.  enacts,  that  the  kingf,  after  judgment  pronounced  may,  by  warrant  under  his 
sign  manual,  countersigned  by  one  of  the  principal  secretaries  of  state,  declare  it  to  be 
his  pleasure,  and  may  order  and  direct  that  such  person  shall  not  be  drawn,  but  shall  be 
taken  in  such  manner  as  in  the  said  warrant  shall  be  expressed,  to  the  place  of  execu- 
tion, and  that  such  person  shall  not  be  hanged  by  the  neck,  but  in  stead  thereof  the 
head  shall  be  there  severed  from  the  body  of  such  person  whilst  alive,  and  in  such  war- 
rant may  direct  and  order  how  and  in  what  manner  the  body,  head,  and  quarters  of 
such  person  shall  be  disposed  of,  and  it  shall  be  lawful  for  the  sheriff  or  other  person  to 
"whom  such  warrant  shall  be  directed  and  whom  it  shall  concern,  to  carry  the  same  into 
execution  accordingly. 

By  the  33d  Sect,  of  the  act  of  Congress  of  April  30,  1790,  the  manner  of  in- 
flicting  the  punishment  of  death  shall  be  by  hanging  the  person  convicted  by  the  neck 
until  dead. 

[5]  But  now  by  the  30  Geo.  3.  c.  48.  women  are  to  be  drawn  to  the  place  of  execution 
and  hanged. 


352  HISTORIA  PLACITORUM  CORONA. 

trahalur  «§•  suspendatur,  or  distrahatur,  suspendalur  <§'  decapi- 
tetur. 

Ill  the  case(/)  16  Jac.  for  counterfeiting  the  privy  signet,  which 
was  made  treason  by  the  statute  of  1  Mar.  cap.  6.  the  judgment 
was  the  great  and  solemn  judgment  of  drawing,  hanging  and  quar- 
tering. 

But  suppose  the  judgment  were  so  in  case  of  counterfeiting  the 
seal,  great  or  privy,  yet  the  question  is  whether  the  same  judgment 
must  be  in  those  new  treasons  enacted  by  1  <5'  2  P.  <§•  M.  cap.  11. 
for  counterfeiting  foreign  coin  made  current  by  proclamation,  and 
also  npon  the  statutes  of  5  Eliz.  and  18  Eliz.  for  clipping  and  wash- 
ing, whether  must  they  have  the  solemn  judgment  to  be  hanged 
and  quartered,  or  only  the  judgment  of  petit  treason  to  be  drawn 
and  hanged. 

And  herein  by  Stamf.  Lib.  Ill,  cap.  \9.{k)  and  Co.  P.  C.  p.  17. 
the  judgment  is  to  be  the  solemn  judgment,  and  not  the  judgment  to 
be  drawn  and  hanged,  because  it  is  a  new  treason  made  by  act  of 
parliament,  and  therefore  must  have  the  solemnity  of  the  great  judg- 
ment in  case  of  high  treason. 

And  surely  this  is  regularly  true,  and  therefore  in  the  case  of 
popish  priests,  and  those  other  acts  of  treason  newly  enacted  in  the 
queen's  time,  the  judgment  is  to  be  drawn,  hanged  and  quartered; 
but  it  seems  to  me,  that  the  law  is  otherwise  in  relation  to  those  new 
treasons  enacted  in  the  time  of  queen  Mary  and  queen  Elizabeth 
relating  to  coin,  and  that  in  all  those  cases  the  judgment  at  least  may 
be  only  to  be  drawn  and  hanged;  and  my  reasons  are,  1,  Because 
they  are  in  co^nata  materia  falsijicalionis  monetve,  and  therefore 
tho  they  are  made  treason,  yet  they  are  within  the  verge  of  the  crime 
of  falsification  of  money,  and  are  to  be  under  the  same  punishment. 
2.  It  were  unreasonable  to  think,  that  the  parliament  should  make 
the  counterfeiting  of  foreign  coin  to  have  a  greater  kind  of  punish- 
ment, than  the  counterfeiting  of  the  coin  of  this  kingdom, 
[  353  ]  or  that  clipping  English  or  foreign  coin  should  have  a 
greater  punishment,  than  counterfeiting  of  the  coin  of  tliis 
kingdom.  3.  As  the  statute  of  25  E.  3.  tho  it  declares  as  well  coun- 
terteiting  of  money  as  levying  of  war  to  be  high  treason,  yet  leaves 
them  under  the  several  degrees  of  punishments  proportionable  to  their 
nature,  and  what  they  had  before,  so  tho  these  statutes  make  those 
to  be  new  treasons,  that  were  not  before,  yet  in  as  much  as  the  pun- 
ishments of  treasons  were  not  equal,  but  tliat  concerning  coin  was  a 
punishment  of  a  lower  allay,  therefore  the  subject  matter  of  those 
acts  shall  govern  the  degree  of  their  punishment  accordiiag  to  that 
punishment  of  treason,  that  relates  to  coin.  4.  And  accordingly  in 
the  book  of  T.  6  Eliz.  By.  230.  b.  it  is  agreed  by  the  justices,  that 
the  punishment  pro  tonsiird  monetve.  is  only  to  be  drawn  and  hanged, 
and  upon  a  strict  search  into  the  precedents  of  Ae^^j^a/e  from  5  Eliz. 
downwards,  tho  some  judgments  for  clipping  be  the  solemn  judg- 
ments, yet  the  most  and  latest  are  only  to  be  drawn  and  hanged,  and 

(i)  Robinson's  case,  2  Kol.  Rep.  50.  (Jc)  p.  182.  b. 


HISTORIA  PLACITORUM  CORONA.  353 

accordingly  it  was  resolved  and  done  upon  great  deliberation  lately 
in  the  king's  bench  upon  the  conviction  of  two  Frenchmen  for  clip- 
ping of  the  king's  coin.(/) 

But  however  it  seems,  that  the  judgment  either  of  one  kind  or  the 
other  seems  not  to  be  erroneous,  for  hanging  and  drawing  is  part  of 
the  solemn  judgment,  and  tho  either  may  be  perchance  warrantable 
enough,  yet  certainly  the  judgment  of  petit  treason  in  all  treasons 
touching  coin  is  the  most  warrantable  and  safe. [6] 

IV.  I  come  to  consider  of  the  consequents  of  a  judgment  in  treason. 

If  the  judgment  be  given  by  him,  that  hath  authority,  and  it  be 
erroneous,  it  was  at  common  law  reversible  by  writ  of  error;  only 
the  statute  of  29  Eliz.  cap.  2.  secures  all  former  attainders,  where 
the  party  is  executed,  from  reversal  by  writ  of  error,  but  meddles 
not  with  other  attainders,  neither  doth  the  statute  of  33  H.  8. 
cap.  20.  take  away  writs  of  error  upon  attainder  of  treason,  as  hath, 
been  resolved  against  the  opinion  of  Stamf.  P.  C.  Lib.  III.  cap. 
\9.{m)  Co.  P.  C.p.  31. 

But  it  is  true,  that  the  statutes  of  26  H.  8.  cap.  13.  and 
5  8f  Q  E.  6.  cap.  11,  take  away  from  a  person  outlawed  in  [  354  ~\ 
treason  the  advantage  of  reversal  of  an  outlawry,  because 
the  party  outlawed  was  out  of  the  realm,  but  extends  not  to  other 
offenses. 

The  consequents  of  a  judgment  in  treason  are,  1.  Corruption  of 
blood  of  the  party  attaint.  2.  Loss  of  dower  to  his  wife.  3.  For- 
feiture to  the  king  of  all  his  lands,  goods  and  chatties.  4.  Execution, 
whereof  in  the  next  chapter.[7] 


CHAPTER  XXVII. 

TOUCHING   CORRUPTION   OF  BLOOD   AND    RESTITUTIONS  THEREOF,  LOSS 
OF    DOWER,  FORFEITURE    OF    GOODS,  AND    EXECUTION. 

The  consequence  of  the  judgment  in  high  treason,  petit  treason,  or 
felony,  is  corruption  of  blood  of  the  party  attaint ;  unless  it  be  in  such 
special  treasons  or  felonies  enacted  by  parliament,  wherein  it  is  espe- 
cially provided,  that  the  attainder  thereof  shall  make  no  corruption 
of  blood,  as  upon  the  statutes  of  5  and  18  Eliz.  in  treason  for  clip- 
ping and  washing  of  coin;  and  upon  the  statutes  of  21  Juc.  cap.  2G. 
for  acknowledging  a  recognizance,  S^c.  in  another's  name,  1  Jac. 
Ctf/7.  11.  for  bigamy,  and  many  others.  •  , 

\{l)  The  cdise oi Bellew  and  Norman,  Raym.  234.  1  Ventr.  254.  (jn) p.  182.  b. 

,[6]  The  2  Will.  4.  c.  34.  abolishes  the  punishment  of  death  in  ail  cases  of  offences 
rekting  to  the  coin.  By  the  3  sect,  the  counterfeiting  the  gold  and  silver  coin  is  pun- 
ishcd,  at  the  discretion  of  tiie  court,  by  transportation  for  life,  or  for  seven  years,  or 
imprisonment  not  exceeding  four  years.  The  subsequent  sections  provide  for  the  pun- 
ishment of  the  several  other  offences  of  this  nature. 

[7]  For  the  learning  relating  to  the  judgment  in  high  treason,  see  Luders'  Tracts,  149. 
1  East,  P.  C.  137. 


354  HISTORIA  PLACITORUM  CORONJE. 

If  a  man  be  attaint  of  piracy  before  commissioners  of  oyer  and  ter- 
miner grounded  upon  the  statute  of  28  H.  8.  cap,  15.  by  indictment 
and  verdict  of  twelve  men  according  to  the  course  of  the  common 
law,  he  forfeits  his  lands  and  goods  by  the  statute  of  28  H.  8.  cup.  15. 
but  this  works  no  corruption  of  blood,  because  it  is  an  offense  where- 
of the  common  law  takes  no  notice,  and  tho  it  be  enacted, 
[  355  3  they  shall  suffer  and  forfeit  as  in  case  of  felony,  yet  it  alters 
not  the  offense,  Co.  P.  C.  cap.  49.  p.  112.  vide  iamen  con- 
tra Co.  Litt.  §  145.  p.  391. 

If  a  man  be  attainted  before  the  admiraKof  treason  or  felony  com- 
mitted upon  the  sea,  or  before  the  constable  and  marshal  for  treason 
or  murder  committed  beyond  the  sea,  according  to  the  course  of  the 
civil  law,  it  works  no  corruption  of  blood,  for  tho  these  offenses 
within  the  cognizance  of  the  common  law  are  felonies  or  treasons, 
yet  the  manner  of  the  trial  being  according  to  the  course  of  the  civil 
law,  the  judgment  thereupon,  tho  capital,  corrupts  not  the  blood. 

If  there  be  an  attainder  of  treason  or  felony  done  upon  the  sea 
upon  this  statute  of  28  H.  8.  by  jury,  according  to  the  course  of  the 
common  law,  it  seems  that  the  judgment  thereupon  works  a  corrup- 
tion of  blood,  because  the  commission  itself  is  under  the  great  seal 
warranted  by  act  of  parliament,  and  the  trial  is  according  to  the  course 
of  the  common  law,  and  therefore  the  proceeding  and  judgment 
thereupon  is  of  the  same  effect,  as  an  attainder  of  foreign  treason  by 
commission  upon  the  statute  of  35  H.  8.  cap.  2.  or  any  other  attain- 
der by  course  of  the  common  law,  and  with  this  agrees  Co.  Litt. 
§  745.  p.  391.  nay,  I  think  farther,  that  if  the  indictment  of  piracy 
before  such  commissioners  upon  the  statute  of  28  H.  8.  be  formed  as 
an  indictment  of  robbery  at  common  law,  viz.  vi  %■  armis  Sffelunic^y 
^■c.  that  he  might  be  thereupon  attainted,  and  the  blood  corrupted; 
for  whatever  any  say  to  the  contrary,  it  is  out  of  question,  that  piracy 
upon  the  statute  is  robbery,  and  the  offenders  have  been  indicted, 
convicted,  and  executed  for  it  in  the  king's  bench,  as  for  a  robbery, 
as  I  have  elsewhere  made  it  evident. 

But  indeed,  if  the  indictment  before  these  commissioners  run  only 
according  to  the  style  of  the  civil  law,  viz.  piralicl  deprxdavit,  then 
the  attainder  thereupon  upon  the  statute  of  28  //.  8.  though  it  gives 
the  forfeiture  of  lands  and  goods,  corrupts  not  the  blood,  and  so  are 
those  two  books  of  the  same  author,  Co.  P.  C.  cap.  49.  and  Co.  Litt. 
§  745.  to  be  reconciled,  which  without  this  diversity  would  be  con- 
tradictory: vide  H.  13.  Car.  B.  R.  Ililliar  6,-  Moore. 

By  the  statute  of  Westminster  2.  de  dunis  conditionalibus, 
[  356  3  if  tenant  in  tail  be  attaint  of  felony  or  treason,  there  is  no 
corruption  of  blood  wrought  as  to  the  issue  in  tail,  because 
the  very  blood  as  well  as  the  land,  is  entailed,  and  yet  for  the  advan- 
tage of  the  issue  there  is  a  corruption  of  blood,  as  if  the  tenant  in  tail 
alien  with  the  warranty  and  assets,  and  then  is  attainted,  the  lien  of 
the  warranty  is  gone,  for  that  lien  was  not  entailed.  Litt.  §  747.  but 
if  the  warranty  were  annexed  to  the  gift  in  tail,  the  attainder  of  the 
donee  doth  not  destroy  the  warranty  to  the  issue,  for  the  warranty  is 
entailed. 


HISTORIA  PLACITORUM  CORONA.  356 

The  statutes  of  26  and  33  H.  8.  subject  estates-tail  to  forfeiture  by 
attainder  of  treason,  and  so  the  law  stands  at  this  day,  notwithstand- 
in£^  the  statutes  of  1  E.  6.  and  1  Mar.  whereof  before. [1] 

But  yet  these  acts  are  not  absolutely  a  repeal  of  the  statute  of  donis 
coridilionalihus,  lor  notwithstanding  the  forfeiture  of  the  lands  en- 
tailed by  the  attainder,  yet  the  blood  is  not  corrupted  as  to  the  issue 
in  tail. 

And  therefore  if  the  son  of  the  donee  in  tail  be  attainted  of  treason 
in  the  life  of  the  father,  and  dies  having  issue,  and  then  the  father 
dies,  the  estate  shall  descend  to  the  grandchild,  notwithstanding  the 
father's  atiamder;  but  otherwise  it  would  have  been  in  case  of  a 
fee-simj)le.     3  Co.  Rep.  Dowtie^s  case,  10  b. 

In  all  cases  (but  only  in  cases  of  entails  as  before)  attainder  of 
treason  or  felony  corrupts  the  blood  upward  and  downward,  so  that 
no  person  that  must  make  his  derivation  of  descent  to,  or  through  the 
parties  attaint,  can  inherit,  as  if  there  be  grandfather,  father,  and  son, 
the  father  is  attainted,  and  dies  in  the  life  of  the  grandfather,  the  sou 
cannot  inherit  the  grandfather.(«) 

In  cases  of  collateral  descents  of  lands  in  fee  simple,  if  there  be 
father  and  two  sons,  and  the  eldest  is  attainted  in  the  life  of  the  father, 
and  dies  without  issue  in  the  life  of  the  father,  the  younger  son  shall 
inherit  the  father,  for  he  needs  not  mention  his  elder  brother  in  the 
conveying  of  his  title;  but  if  the  elder  son  attaint  survive  the  father 
but  a  day,  and  die  without  issue,  the  second  son  cannot  in- 
herit, but  the  land  shall  eschete  yjro  defectu  haeredis,  for  the  [  357  ]] 
corruption  of  blood  in  the  elder  son  surviving  the  father  im- 
pedes the  descent.     31  E.  1.  Barr.  315. 

But  otherwise  it  is  in  case  the  eldest  son  had  been  an  alien  nee,{or 
then  notwithstanding  such  son  alien  were  living,  the  land  will  des- 
cend from  the  father  to  the  youngest  son  born  a  denizen. 

If  a  man  hath  two  sons  and  then  is  attaint  of  treason  or  felony,  the 
elder  son  purchaseth  land  and  dies  without  issue,  either  in  the  life- 
time or  after  the  death  of  the  father,  the  attainder  of  the  father  is  no 
impediment  of  the  descent  from  the  brother  to  the  brother.  Sir  Philip 
Hobby's  case,  Co.  Litt.  8. 

And  the  same  law  is  in  case  the  father  were  first  attaint,  and  then 
had  issue  two  sons,  the  elder  purchases  lands  in  fee  simple  and  dies 
without  issue,  the  younger  shall  inherit,  for  tho  both  derive  their 
blood  from  the  father,  yet  the  descent  from  the  brother  to  the  bro- 
ther is  immediate,  and  is  not  impeached  by  the  attainder  of  the  father, 
this  tho  made  a  doubt,  Co.  Lilt.  p.  S.  yet  was  agreed  generally  by 
the  judges  in  the  exchequer-chamber  in  the  case  of  the  earl  of  Hol- 
derness.{b) 

■    (a)  Dyer  274. 
(i)  P.  16  Car.  2.  reported  by  the  name  of  Collingwood  and  Pace,  1  Sid.  193. 1  Yen.  413. 

[1]  Tenant  in  tail  attainted  of  treason  by  the  act  of  the  legislature  o?  New  Jersey  of 
the  11th  December,  1778,  forfeits  his  lite  estate  only.  Denn  ex  dein.  Hinchman  v. 
Clark  et  al.  Coxe's  Rep.  340. 


357  HISTORIA  PLACITORUM  CORON.^. 

But  if  there  be  two  brothers,  the  elder  is  attaint  and  have  issue, 
and  dies  in  the  hfe  of  the  youns^er^and  then  the  younger  die  without 
issue,  the  lands  in  fee-simple  of  the  younger  shall  not  descend  to  the 
nephew,  for  the  attainder  of  his  father  is  an  impediment  to  the  deri- 
vation of  his  descent. 

And  accordingly  it  is,  if  the  son  of  the  person  attaint  purchases 
lands  and  dies  without  issue,  it  shall  not  descend  to  his  uncle,  for  the 
attainder  of  his  father  corrupted  his  blood,  whereby  the  bridge  is 
broken  between  the  nephew  and  uncle,  and  the  one  cannot  inlierit 
the  other,  but  the  land  shall  eschete  pro  defectn  hxredis:  vide  ac- 
cordant ruled  in  Courtney\<i  case  infra  Co.  P.  C.  p  241  [2] 

Thus  far  for  corruption  of  blood. [3] 
[  358  ]       Touching  restitutions  in  blood  they  are  of  two  kinds,  by 
pardon,  and  by  act  of  parliament. 

The  king's  pardon,  tho  it  doth  not  restore  the  blood,  yet  as  to 
issues  born  after  it  hath  the  etTect  of  a  restitution. 

t/i.  hath  issue  B.  a  son,  and  then  is  attaint  of  treason  or  felony,  and 
then  is  pardoned  and  purchaseth  land  in  fee  simple,  and  then  hath 
issue  C.  if  i/^.  dies,  and  B.  survives,  and  after  dies  without  issue,  yet 
the  land  shall  eschete  pro  defeciu  hseredis,  for  the  pardon  restores 
not  the  blood  between  Ji.  and  B.  that  was  born  before;  but  if  B.  had 
died  without  issue  in  the  life  of  .^.  and  then  A.  had  died,  the  land 
should  descend  to  C.  because  he  was  not  in  being  while  his  father's 
attainder  stood  in  force,  but  was  born  after  the  purging  of  the  crime 
and  punishment  by  the  pardon,   Co.  Lift.  §  747. 

But  restitution  of  blood  in  its  true  nature  and  extent  can  only  be 
by  act  of  Parliament. 

Restitutions  by  parliament  are  of  two  kinds,  one  a  restitution  only 
in  blood,  which  only  removes  the  corruption  thereof,  but  restores 
not  to  the  party  attaint  or  his  heirs  the  manors  or  honours  lost  by 
the  attainder,  unless  it  specially  extend  to  it;  the  other  is  a  gene- 
ral restitution  not  only  in  blood,  but  to  the  lands,  «§'c.  of  the  party 
attaint. 

A  restitution  in  blood  may  be  special  and  qualified,  but  generally 
a  restitution  in  blood  is  construed  liberally  and  extensively. 

Jl.  hath  issue  B.  a  son,  and  is  attaint  of  treason  and  dies,  B.  pur- 
chaseth land  in  fee  simple,  B.  by  parliament  is  restored  only  in 
blood,  and  enabled  as  well  as  heir  to  ^.  as  to  all  other  collateral  and 
lineal  ancestors,  provided  it  shall  not  restore  B.  to  any  of  the  lands  of 
td.  forfeited  by  the  attainder,  B.  dies  without  issue;  it  was  ruled,  that 

[2]  At  common  law  the  curtsey  estate  of  the  husband  is  not  forfeited  to  the  common- 
wealth by  his  attainder  of  treason,  committed  in  the  lifetime  of  the  wife  and  after  issue 
born;  but  on  tiie  death  of  the  wife  the  estate  passes  to  her  heir  or  devisee  discharjfcd  of 
the  curtsey.  I'emberton  v.  flicks,  1  Ihnn.  1.  S.  C.  3  Dull.  47!).  4  id.  168.  The  widow  of 
a  man  who  was  banished  from  the  State  of  South  Carolina,  and  wiiose  estate  was  confis- 
cated by  an  act  of  the  Icfrisiature  of  1782,  for  adhering-  to  the  British  in  tiie  course  of 
the  revolutionary  war,  was  licld  to  be  entitled  to  her  dower  in  all  his  lands.  Wills  v.  Mar- 
tin, 2  Bay  Kep.  20. 

[3]  Corruplion  of  blood  is  now  only  peculiar  to  treason  and  murder,  being  abolished  in 
other  cases,  by  the  54  Geo,  3.  c.  145. 


HISTORIA  PLACITORUM  CORONA.  358 

the  lands  of  B.  shall  descend  to  the  sisters  of  ^^.  as  aunts  and  collate- 
ral heirs  oi  B.  1,  Because  the  corruption  of  blood  by  the  attainder  is 
removed  by  the  restitution.  2.  Altho  the  words  of  the  act  of  resti- 
tution be  to  restore  B.  only  as  heir  to  J2.  <§«c.  yet  this  doth  not  only 
remove  the  corruption  of  blood,  and  restore  him  and  his  lineal  heirs 
in  blood,  but  also  his  collateral  lieirs,  and  removes  that  im- 
pediment, which  would  have  hindered  the  descent  to  them.  [  359  ] 
Co.  P.  C.  cap.  106.     Cour/ ne J/' s  case. 

It  appears  BoL  Pari.  25  E.  3.  n.  54,  55.  that  John  Mutravers^ 
that  was  attainted  of  treason  in  4  E.  3.  obtaind  letters  patent  from 
the  king  of  restitution  in  blood,  but  it  was  not  effectual,  and  there- 
fore there  is  enacted  a  general  restitution  as  well  in  blood,  as  to 
his  land  by  a  charter  enacted  and  confirmed  in  parliament,  namely 
by  the  king  with  the  consent  of  the  lords  at  the  petition  of  the  com- 
mons. 

II.  As  to  the  second  matter,  namely  the  forfeiture  of  the  wife's 
dower. 

At  common  law  the  husband  being  attainted  of  treason  or  felony 
the  wife  should  lose  her  dower,  tho  it  were  dower  assigned  ad  ostium 
ecclesise  or  ex  assen.su  pairis,  Co.  Litt.  §.41.  p.  2>1.  ibidem  §.  747. 
but  not  upon  attainder  of  misprision  of  treason;  but  by  the  statute 
of  1  E.  6.  cap.  12.  and  5  E.  6.  cap.  11.  tho  her  husband  be  attainted 
of  felony  or  murder,  she  shall  not  lose  her  dower. 

But  by  attainder  of  her  husband  of  high  treason  or  petit  treason 
the  wife  shall  lose  her  dower  at  this  day,  unless  in  case  of  attainders 
of  such  treasons,  where  by  special  provision  of  parliament  the  wife's 
dower  is  saved,  as  upon  the  statutes  of  5  and  IS  Eliz.  touching  coin. 

But  if  the  husband  seised  in  right  of  the  wife  hath  issue  by  her, 
and  then  the  wife  commits  treason,  and  is  attainted  and  dies,  it  seems 
the  husband  shall  be  tenant  by  the  courtesy,  otherwise  it  were,  if  the 
treason  were  committed  before  issue  had:  vide  Co.  Lilt.  §.  35. 

III.  As  to  the  third  thing,  namely  the  forfeitures,  that  happen  by 
attainder,  they  are  of  these  kinds,  of  lands,  or  of  goods  and  chattels, 
or  of  dignities  and  honours. 

1.  As  to  the  forfeiture  of  lands,  generally  the  lands  of  all  persons 
attainted  of  treason  belong  to  the  king,  but  by  special  privilege  they 
may  belong  to  a  subject,  as  in  case  of  the  bishop  ol  Durham,  Sfc.  de 
quo  supra  p.  254.  ^-c. 

If  at  common  law  tenant  in  tail  were  attainted  of  treason,  or  at 
this  day  be  attainted  of  felony,  tho  the  inheritance  neither  eschete 
nor  be  forfeited,  yet  the  king  hath  (tipon  office  found)  the 
freehold  during  the  life  of  the  tenant  in  tail,  and  not  barely  [360  ]] 
a  pernancy  of  profits:  adjudged  T.  29  Eliz.  Clenche's  rep. 
Venable^s  case,  and   3  Leon.  n.  236. (c)   Co.  Litt.  §.  747.  and  the 
same  law  it  is  for  tenant  of  life  attaint. 
•.   But  an  attainder  of  treason  or  felony  of  a  copyholder  gives  the 

(c);>.  185. 


360  HISTORIA  PLACITORUM  CORONA. 

king  no  forfeiture,  but  regularly  it  belongs  to  the  lord,  unless  special 
custom  be  to  the  contrary. 

By  the  custom  of  Kent,  if  the  ancestors  be  attaint  of  felony  and 
executed,  yet  his  lands  shall  not  eschete  but  descend  to  the  heir; 
but  if  he  be  attaint  by  outlawry,  or  abjure,  they  are  not  priviledged 
by  the  custom  from  eschete. 

But  if  he  be  any  way  attaint  of  treason,  yet  the  forfeiture  thereof 
belongs  to  the  king  notwithstanding  that  custom.  8  E.  2.  Prescrip- 
tion 50.  Lambard^s  Ferambidatio  Kcnitix, p.  551. 

If  the  tenant  hold  lands  of  a  common  person,  and  commit  treason 
and  be  attaint,  yet  the  forfeiture  belongs  to  the  king  of  common  right, 
as  a  royal  eschete;  but  if  such  person  commit  felony  or  petit  treason 
and  be  attaint,  the  lands  eschete  to  the  lord,  of  whom  they  were 
immediately  held,  only  the  king  shall  have  the  year,  day,  and  waste 
of  the  tenement  so  escheted  for  felony  or  petit  treason.  Stamf. 
Prserogativa  Begis,  cap.  \Q.{d) 

The  commencement  of  this  year  and  day  is  neither  from  the 
attainder  nor  from  the  death  of  the  party  attaint,  but  from  the  time 
of  the  inquisition  found,  tho  the  same  be  not  found  for  many  years 
after  the  death  of  the  person  attaint.  49  E.  3.  11. 

If  tenant  in  tail  or  for  life,  or  the  husband  seised  in  right  of  his 
wife  be  attaint  of  felony,  the  king  shall  have  the  year,  day  and  waste 
against  the  wife,  the  issue  in  tail,  and  him  in  reversion.  Stamf.  P.  C. 
Lib.  III.  cap.  30.(e)  3  E.  3.  Coro.  327,  but  of  this  more  hereafter. 

The  relation  of  the  forfeiture  or  eschete  of  lands  for  treason  or 
felony  to  avoid  all  mesne  incumbrances  is  to  the  time  of  the  offense 
committed. 

t^.  and  B.  joint  tenants  in  fee,  ,^.  is  attaint  of  treason  or  felony 
and  dies,  the  land  survives  to  B.  but  vet  subject  to  the  title 
[361  ]  of  the  forfeiture.  H.  10  Car.  Bat/ 342.  B.  R.  Harrison 
and  Walden. 

If  a  man  seised  in  fee  alien,  and  then  be  attaint  of  treason  or  felony 
by  confession  or  abjuration  upon  an  indictment  supposing  the  felony 
committed  before  the  alienation,  the  alienee  may  not  only  falsify  the 
attainder  in  the  point  of  the  time  of  the  felony  supposed,  but  also  in 
the  very  point  of  the  felony  or  treason  itself,  and  is  not  concluded  by 
the  confession  of  the  alienor,  tho  the  alienor  himself  be  concluded. 
49  E.  3.  11.  7  E.  4.  1.   Co.  P.  C.  cap.  104.;?.  231. 

But  if  he  be  attaint  of  felony  or  treason  by  verdict  upon  an  indict- 
ment, supposing  the  offense  before  the  alienation,  tho  the  alienee 
cannot  falsify  the  attainder  by  supposing  there  was  no  felony  com- 
mitted, yet  he  may  falsify  it  as  to  the  point  of  time,  viz.  he  may 
allege  contrary  to  the  indictment,  that  the  felony  or  treason  was  com- 
mitted after  the  alienaiion,  and  not  before,  Co.  P.  C.  ubi  supra 
32  Eliz.  Syer's  case. 

If  a  man  be  indicted  of  a  felony  or  treason  supposed  the  1st  of 
Jlpril  24  Car.  and  in  truth  it  was  committed  1  Junii  24  Car.  yet  he 

{d)  See  Mag.  Chart,  ca'p.  22,  2  Co.  Inst.  3G.  (e)  190  b. 


HISTORIA  PLACITORUM  CORONA.  361 

shall  be  convicted  notwithstanding  that  variance,  for  the  day  is  not 
material;  yet  in  such  case  for  the  avoiding  of  the  danger  and  trouble, 
that  may  ensue  by  tiie  relation  of  such  attainder  to  the  day  men- 
tioned in  the  indictment,  it  is  fit  for  the  jury  to  find  the  true  day: 
vide  Syer^s  case,  ubi  supra. 

If  a  man  be  outlawed  upon  an  indictment  of  felony  or  treason,  and 
pending  the  process  he  alien  the  land,  yet  the  king  or  lord  shall  have 
the  land,  which  he  held  at  the  time  of  the  felony  committed,  for  the 
indictment  contains  the  year  and  day,  when  it  was  done,  unto  which 
the  attainder  by  outlawry  relates. 

But  if  a  man  sue  an  appeal  by  writ  of  felony  or  murder,  and  pend- 
ing it  the  party  aliens,  and  then  is  outlawed  before  appearance,  the 
lords  eschete  is  lost,  because  it  relates  only  to  the  time  of  the  out- 
lawry pronounced,  in  as  much  as  the  writ  of  appeal  is  general,  and 
contains  no  certain  time  of  the  ofiense  committed,  cited  to  be  adjudged 
5  E.e  Co.  Lilt.  §  4./0/.  13  «. 

But  it  seems,  that  if  the  defendant  had  appeared  and  the 
plaintiff"  had  declared  upon  his  writ,  and  the  defendant  had  f  362  ] 
been  convict  and  attaint  by  verdict  or  confession,  or  if  the 
appeal  had  been  by  bill,  and  thereupon  the  party  had  been  outlawed, 
iho  before  appearance,  the  eschete  had  related  to  the  time  of  the  fact 
committed  to  avoid  mesne  incumbrances,  for  in  the  declaration  in  the 
one  case,  and  in  the  bill  in  the  other  case,  the  year  and  day  of  the 
felony  is  set  forth. 

Touching  forfeiture  of  goods. 

The  goods  of  a  person  convict  of  felony  or  treason,  or  put  in  exi- 
gent for  the  same,  or  that  fled  for  these  offenses,  or  that  stands  mute, 
are  forfeit  to  the  king. 

But  the  relation  of  these  forfeitures  refer  not  to  the  time  of  the 
oflense  committed,  nor  to  the  time  of  the  flight,  but  only  to  the  con- 
viction or  to  the  time  presented,  or  to  the  time  of  the  exigent 
awarded. 

And  therefore  an  alienation  made  by  the  felon  or  traitor,  or  person 
flying  bond  fide  and  without  fraud,  mesne  between  the  offense  or 
the  flight,  and  the  conviction  or  presentment  of  the  flight  is  good,  and 
binds  the  king,  but  if  fraudulent,  then  it  is  avoidable  by  the  statute 
of  13  EUz.  cap.  5.  3  E.  3.  Coron.  296.  ibidem  344. 

If  a  man  commits  a  felony  and  be  pursued,  and  in  the  flight  be 
killed,  whereby  he  can  neither  be  indicted  nor  convict,  yet  if  this 
matter  be  found  by  inquisition  before  the  justices  in  eyre  or  of  oyer 
and  termi7ier,  he  shall  forfeit  the  goods  he  had  at  the  time  of  the 
flight,  and  not  those  only,  which  were  his  at  the  time  of  the  inqui- 
sition found,  for  there  it  must  relate  to  the  flight,  because  the  party 
is  dead,  and  can  be  no  farther  proceeded  against,  3  E.  3.  Coron. 
'290.  312. 

If  a  party  be  acquitted  of  treason  or  felony,  the  jury  that  acquits 
him  ought  to  enquire  of  his  flight  for  it,  and  if  they  find  he  fled, 
what  goods  he  had,  for  his  goods  and  chatties   are   thereby  for- 


362  HISTORIA  PLACITORUM  CORONA. 

feited  ;(4)  but  this  is  but  an  inquest  of  office,  and  therefore  is  tra- 
versable by  the  party  :  vide  Stamf.  P.  C.  Lib.  III.  cap.  21.(/) 

But  upon  an  inquisition  before  the  coroner  of  the  death  of 

[  363  J  a  man  super  visum   corporis,  tho   the   party  accused   be 

acquitted,  yet  if  it  be  presented,  that  he  fled  for  it,  it  is 

doubted  whether  that  inquisition  as  to  the  flight  be  traversable :  vide 

Slamf.  P.  C.  Lib.  III.  cap.  21. 

But  on  all  hands  it  is  agreed,  that  if  the  coroner  upon  the  inquest 
super  visum  corporis  presents  one  as  guilty,  and  that  he  fled  for  it, 
and  the  party  is  arraigned  and  found  not  guilty,  and  also  that  he  did 
not  fly,  yet  that  doth  not  avoid  the  first  inquisition  as  to  the  flight, 
but  the  best  shall  be  taken  for  the  king,  tho  both  are  in  the  nature 
of  inquests  of  office.  22  ^ss.  96.  Forfeitures  27.  3  E.  4.  Forfeit- 
ures 35.  H.  13  H.  4.  Forfeitures  32.  7  Eliz.  Dif.  238.  b.   ' 

A  fugam  fecit  by  the  principal  or  accessary  before,  in  murder,  if 
the  fact  be  presented  before  the  coroner,  entitles  the  king  to  the  goods 
of  the  offender,  for  these  are  within  the  cognizance  of  the  coroner, 
but  the  coroner  hath  no  power  to  enquire  of  accessaries  after,  nor 
consequently  of  their  flight,  and  therefore  a  presentment  before  the 
coroner  of  the  flight  of  an  accessary  after  gives  the  king  no  title  to 
the  goods.     4  H.  7.  18. 

The  usage  was  always  upon  a  presentment  of  homicide  before  the 
coroner,  or  of  flight  for  the  same,  or  upon  a  conviction  of  felony  by 
the  petit  jury,  or  the  finding  of  a  flight  for  the  same,  to  charge  the 
inquest  or  jury  to  enquire,  what  goods  and  chattels  he  hath,  and 
where  they  are,  and  thereupon  to  charge  the  Villata  where  such 
goods  are  with  the  goods  to  be  answerable  to  the  king  :  vide  3  E.  3. 
Corone  296.  S,'  alibi,  vide  statute  31  E.  3.  cap.  3. 

But  tho  the  goods  of  an  off'ender  be  not  forfeited  till  the  conviction 
or  flight  found  by  inquest,  yet  whether  they  may  be  seised  upon  the 
ofl"ense  committed,  hath  been  controverted. 

1?  It  seems  clear,  ihat  at  common  law  if  a  man  had  committed 
felony  or  treason,  or  tho  possibly  he  had  committed  none,  yet  if  he 
had  been  indicted  or  appealed  by  an  approver,  the  sheriff,  coroner, 
or  other  officer  could  not  seize  and  carry  away  the  goods  of  the  offen- 
der or  party  accused. 

2.  Again,  he  could  not  in  that  case  have  removed  the 
\_  364  ~\  goods  out  of  the  custody  of  the  offender  or  party  accused, 
and  deliver  them  over  to  the  constables  or  to  the  Villata  to 
answer  for  them.     13.  H.  4.  13. 

3.  But  if  the  party  were  indicted  or  appealed  by  an  approver,  the 
sheriff,  or  other  officer  might  make  a  simple  seizure  of  them,  only  to 
inventory  and  appraise  them,  and  leave  them  in  the  custody  of  the 
servants  or  bailiifof  the  party  indicted,  in  case  he  would  give  secu- 

(/)  p.  183.  h. 

[4]  By  the  7^8  Cfeo.  4.  c.  28.  s.  5.  it  is  enacted,  that  where  any  person  shall  be  in- 
dicted for  treason  or  felonv,  the  jury  impaniicicd  to  try  such  person  shall  not  be  charged 
to  inquire  concerning  his  lands,  tenements,  or  goods,  nor  whether  he  fled  for  such  treason 
or  felony. 


HISTORIA  PLACITORUM  CORONA.  364 

rity  against  their  being  imbezzled,  or  in  default  thereof  he  might  de- 
hver  them  to  the  constable  or  Villata  to  be  answerable  for  them, 
but  yet  so  that  the  party  accused  and  his  family  have  sufficient  out 
of  them  for  their  livelihood  and  maintenance, (§•)  viz.  Salvis  capto  & 
familise  snai  necessariisestoveriis  suis,  &  si  captns  convictus  fuerit  de 
felonia  unde  rettatus  est,  residuum  bonorum  ultra  estoveriuni  illud 
regi  remaneat.  Bract.  Lib.  III.  123.  Fleta,  Lib.  I.  cap.  26.  43  E.  3. 
24.  44  Jiss.  14.  Stamf.  P.  C  Lib.  III.  cap.  32.  Co.  P.  C.  228,  229. 

4.  And  possibly  the  same  law  was,  tho  he  were  not  indicted  or 
appealed,  but  de  facto  had  committed  a  felony,  but  with  this  differ- 
ence, if  he  had  been  indicted  or  appealed  by  an  approver,  this  kind 
of  seizure  might  have  been  niade,  whether  he  conmiitted  the  felony 
or  not;  for  in  the  books  of  43  E.  3.  and  AAJiss.  there  is  no  averment, 
that  the  felony  was  committed,  but  only  that  he  was  thus  accused 
of  record,  and  so  is  the  book  of  13  H.  4.  13. 

But  in  case  there  were  no  indictment,  then  it  is  at  the  peril  of  him 
that  seiseth,  if  he  committed  not  the  felony,  and  therefore  it  is  issu- 
able. 

Now  touching  alterations  by  the  statutes  after  made. 

It  seems,  that  by  the  statute  of  5  E.  3.  cap.  9.  and  the  ensuing  sta- 
tutes, whereby  it  is  enacted,  that  no  man's  goods  shall  be  seized  into 
(he  king's  hands  without  indictment  or  due  process  of  law,  that  it 
was  held,  that  this  kind  of  seizure  of  the  goods  of  a  person  accused 
of  felony,  tho  it  be  only  in  custodiam  Sf  causa  rei  servandse,  hath 
been  held  unlawful,  if  the  person  were  not  first  indicted,  or 
at  least  appeald  by  an  approver;  and  so  the  books  seem  to  P  365  ] 
import  of  43  E.  3.  24.  and  13  ^.  4.  13.  and  expresly  my 
lord  Coke,  P.  C.  cap.  103.;?.  228. 

By  the  statute  of  25  E.  3.  cap.  14.  where  a  party  is  indicted  of 
felony,  the  process  directed  by  that  statute  is  first  a  capias,  and  if  he 
be  not  found  a  second  capias  togetlier  with  a  precept  to  seize  his 
goods,  and  if  he  be  not  found  then,  an  exigent  and  the  goods  to  be 
forfeit. 

And  this  is  more  than  a  simple  seizure,  such  as  was  before  at  com- 
mon law,  for  if  the  party  came  not  in,Jiis  goods  are  forfeit  upon  the 
award  of  the  exigent;  and  if  he  came  in,  tho  his  goods  be  saved,  yet 
there  is  no  direction  for  delivering  his  goods  upon  security;  but  it 
s^ems  the  sheriff  is  to  take  them  into  his  custody,  and  yet  out  of  them 
must  allow  sufficient  for  the  sustenance  of  the  prisoner  and  his  family. 

Qiiasre,  Whether  in  the  case  of  such  a  seizure,  a  sale  for  a  valuable 
consideration  before  conviction  and  after  seizure  do  not  bind  the  king, 
as  it  seems  it  doth  in  a  case  of  seizure  and  delivery  to  the  Villata: 
vide  8.  Co.  Rep.  171.  Fleetivood\s  case. 

This  statute  extends  as  well  to  treason  as  to  felony,  and  yet  it  men- 
tions only  felony,  and  therefore  at  this  day  the  exigent  goes  out  upon 
the  second  Capias  returned  non  inventus,  as  well  in  treason,  as 
felony. 

ig)  See  State  Tr.  Vol.  IV.  p.  615.  Sir  W.  Parkin's  case. 


365  HISTORIA  PLACITORUM  CORONA. 

By  the  statute  of  1  R.  3.  cap.  3.  it  is  enacted,  "  That  neither  she- 
riff, Si'c.  nor  other  person  take  or  seize  the  goods  of  any  person  ar- 
rested or  imprisoned  before  he  be  convict  of  the  felony  according  to 
the  law  of  England,  or  before  the  goods  be  otherwise  lawfully  tbr- 
feited,  upon  pain  of  forfeiting  the  double  value  of  the  goods  so  taken." 

Mr.  Stamford  thinks  this  is  but  an  atlirmance  of  the  common  law, 
only  that  it  gives  a  penalty,  but  it  seems  to  be  somewhat  more  than 
so,  for  this  prohibits  the  seizure  of  the  goods  of  a  party  imprisoned, 
tho  he  were  also  indicted,  but  not  yet  convicted,  where  unquestion- 
ably the  connnon  law  allowed  such  a  seizure,  as  is  before  declared, 
if  the  party  or  his  friends  did  not  secure  the  forth-coming  of  the  goods, 
where  the  party  was  indicted. 

But  upon  this  statute  these  things  are  considerable. 

1.  Whether  it  extends  to  treason;  it  seems  it  doth,  for  as 
r  366  1  all  treason  is  felony  and  more,  so  in  a  statute  of  this  nature 
for  advancing  of  justice  it  seems  comprised  in  it,  for  it  is 
within  the  reason  of  the  law,  and  vide  Co.  P.  C.  p.  228,  tho  I  know 
it  was  otherwise  held,  or  at  least  doubted  in  the  case  of  Sir  Henri/ 
Vane,  whose  rents  were  stopt  in  the  tenants  hands,  and  no  precept 
was  granted  for  their  delivery,  tho  before  conviction,  yea  and  before 
the  indictment,  tho  after  imprisonment  1661. 

2.  Whether  it  extends  to  a  party,  that  is  at  large  and  out  of  prison, 
whether  indicted  or  not  indicted,  and  as  to  that,  1.  It  seems  clearly, 
that  it  doth  not  repeal  the  statute  of  25  E.  3.  cap.  14,  touching  the 
second  Capias  with  a  seizure  of  goods.  But  2.  As  to  other  persons, 
that  are  at  large  and  not  indicted,  nor  process,  as  before,  made  upon 
their  indictment,  it  seems  to  me,  that  if  they  fly  not,  there  can  be  no 
seizure  at  all  made,  whether  they  are  indicted  or  not,  for  the  statute 
did  not  intend  a  greater  privilege  to  a  party  imprisoned  for  an  offense 
of  this  nature,  than  he  that  is  at  large.  3.  That  if  he  be  at  large  and 
fly  for  it,  yet  his  goods  cannot  be  seized  and  removed,  whether  he  be 
indicted  or  not  indicted.  4.  That  if  he  be  indicted  and  at  large,  5'^et 
the  goods  cannot  be  removed,  but  only  viewed,  appraised,  and  in- 
ventoried in  the  house  or  place,  where  they  lie.  5.  That  altho  the 
goods  may  not  be  removed,  because  the  statute  now  hath  taken 
away  that  removal,  that  was  in  some  cases  at  common  law,  yet  nei- 
ther in  case  of  treason  nor  in  case  of  felony,  where  the  party  is  at 
large,  is  it  within  the  penalty  of  the  statute  as  to  the  point  of  forfei- 
ture of  the  double  value,  for  as  to  that  the  statute  is  penal,  but  it  is 
within  the  directive  and  prohibitory  part  of  the  statute,  which  by  an 
equal  construction  and  interpretation  prohibits  the  thing  to  be  prac- 
tised, and  hath  altered  the  law  as  to  the  removing  of  the  goods  of  the 
party  before  conviction. 

And  yet  I  know  not  how  it  comes  to  pass,  the  use  of  seizing  of  the 

goods  of  persons  accused  of  felony,  tho  imprisoned  or  not  imprisoned, 

hath  so  far   obtained  notwithstanding  this  statute,  that  it  passeth 

for  law  and  common  practice  as  well  by  constables,  sheriffs 

("3671   and  other  tho  king's  oflicers,  as  by  lords  of  franchises,  that 

there  is  nothing  more  usual :  vide  IJallon's  Justice  0/ Peace, 


HISTORIA  PLACITORUM  CORONA.  367 

cap.  110.(/i)  in  affirmation  of  it,  viz.  that  the  officer  may  still  take 
surety,  that  the  goods  be  not  embezzled,  and  for  want  of  sureties 
may  seize  and  praise  them,  and  then  deliver  them  to  the  town  safely 
to  be  kept,  until  the  prisoner  be  convict  or  acquit,  and  cites  for  it 
Stamf.  192.  8  Rep.  171.  and  B.  Forfeiture  44. 

It  seems  the  opinion  therefore  of  my  lord  Coke.,  P.  c9cap.  103. 
hath  truly  stated  the  law,  at  least  as  it  stands  upon  the  statute  of 
1  R.  3. 

1.  That  before  the  indictment  the  goods  of  any  person  cannot  be 
searched,  inventoried,  nor  in  any  sort  seized. 

2.  That  after  indictment  they  cannot  be  seized  and  removed,  or 
taken  away  before  conviction  or  attainder;  but  then  it  may  be  said, 
to  what  purpose  may  they  be  searched  and  inventoried  after  indict- 
ment, if  they  may  not  be  removed,  but  are  equally  liable  to  embez- 
zling as  before. 

I  think  he  is  not  bound  to  find  sureties,  neither  hath  the  offiCer  at 
this  day  any  power  to  remove  them  in  default  of  sureties,  and  com- 
mit them  to  the  vill,  but  only  to  inventory  them  and  leave  them 
where  he  found  them,  (unless  in  case  of  the  second  Capias,  whereof 
before)  for  the  prisoner  or  party  indicted  may  sell  them  bond  fide; 
and  if  he  may  do  so,  the  vendee  may  take  them,  and  the  Villata 
cannot  refuse  the  delivery  of  them  to  the  vendee,  tho  the  goods  had 
been  delivered  to  them. 

But  there  is  this  advantage  by  the  viewing  and  appraising,  that 
thereby  the  king  is  ascertained  what  the  goods  are,  and  may  pursue 
them  that  take  or  embezzle  them,  by  information,  (if  the  party  hap- 
pen to  be  convict)  and  try  the  property  with  them,  whether  they  are 
really  sold,  or  sold  only  fraudulently  without  valuable  consideration 
to  prevent  the  forfeiture,  and  so  forfeited  by  the  statute  of  13  Eliz. 
cap.  5.  notwiihstandiug  such  fraudulent  sale. [5] 

IV.  Lastly,  touching  execution  of  judgments  of  treason,  they  are 
directed  by  the  judgment,  whereof  before. 

There  be  nevertheless  some  things,  that  accidentally  hap-  [  368  "1 
pen,  that  suspend  or  abate  the  execution. 

1.  Reprieves  ex  arbitrio  regis  vel  judicis,  the  king  may  by  com- 
mand or  precept  under  his  great  or  privy  seal,  privy  signet,  or  sign 
manual,  yea  by  signification  under  the  hand  of  the  secretary  of  state, 

Qi)  New  Edit.  cap.  163.  p.  538. 

[5]  By  the  Constitution  of  the  United  States,  Art.  3.  Sect.  3.  it  is  provided  that,  Con- 
gress shall  have  power  to  declare  the  punishment  of  treason;  but  no  attainder  of  treason 
shall  work  corruption  of  blood,  or  forfeiture,  except  during  the  life  of  the  person  attaint- 
ed. The  constitutions  of  Connecticut,  Peiinsylvania,  Delaware,  Tennessee,  Ohio,  Indi- 
ona,  Illinois,  Alabama,  Missouri,  and  Arkansas,  contain  similar  provisions.  By  «Seci.  24 
of  the  Act  of  Congress  o{  April  30,  1790,  it  is  enacted,  that  no  conviction  or  judgment 
for  any  capital  or  other  offences,  shall  work  corruption  of  blood,  or  any  forteiture  of 
estate.  See  Hylton  v.  Brown,  1  l-^'.  C.  C.  R.  343.  The  doctrine  of  corruption  of  blood, 
says  Mr.  Rawle,  {Cuns.  146.)  arises  from  an  odious  fiction,  founded  on  a  compound  of 
cruelty  and  avarice,  springing  from  a  perversion  of  the  system  of  tenures,  and  at  vari- 
ajice  with  the  liberal  principles  of  modern  times,  and  the  very  elements  of  justice. 

VOL.  i.^ — 34 


368  HISTORIA  PLACITORUM  CORONA. 

or  at  this  day  by  the  subscription  of  a  master  of  requests,  command 
the  reprieve  of  one  condemned  of  treason  or  felony. 

And  ahho  the  judge,  by  whom  judgment  is  given,  ought  to  be 
very  cautious  in  granting  a  reprieve  of  one  condemned  for  treason 
before  him,  yet  he  may,  upon  due  circumstances  do  it,  as  well  in  case 
of  treason,  as  felony. 

And  this  reprieve  he  may  grant,  and  after  he  hath  granted  it  may 
command  execution  after  the  sessions  and  adjournment  of  the  com- 
mission, Dy.  205.  • 

There  are  other  reprieves,  which  are  not  arbitrary,  but  quasi  de 
j^ire. 

1.  In  respect  of  pregnancy,  for  tho  pregnancy  be  no  plea  to  delay 
judgment,  yet  it  is  a  plea  to  delay  execution,  and  therefore  whenever 
any  judgment  in  treason  or  felony  is  given  against  a  woman,  it  is  the 
duty  of  the  judge,  before  he  finish  his  sessions,  to  demand  of  her  what 
she  can  allege  why  execution  should  not  be  made;  yea  in  all  cases, 
where  a  prisoner  attaint  is  brought  into  another  court,  or  reprieved 
to  another  sessions,  he  ought  not  to  have  any  award  of  execution 
against  him,  till  he  be  first  demanded,  what  he  can  say,  why  it 
should  not  be,  for  possibly  he  may  have  a  pardon  after  judgment. 
22  j3ss.  71. 

This  plea  of  pregnancy  in  retardationem  exeai/ionis  hath  these 
incidents  to  it:  1,  She  must  be  with  child  of  a  quick  child.  2,  If 
it  be'  alleged,  the  judge,  before  whom  it  is  alleged,  must  impanel  an 
inquest  of  women  ex  officio  to  enquire  of  the  truth  of  her  allega- 
tion, viz.  whether  she  be  with  child  of  a  quick  child,  and  if  they 
find  she  is,  then  her  execution  is  to  be  respited,  if  not,  she  is  to  be 
executed. 

If  it  be  found  by  the  jury  of  women,  that  she  is  so  with  child,  some 
have  used  to  command  a  respite  of  her  execution  till  a  convenient 
time,  for  instance  a  month  after  her  delivery,  and  then  to  be 
[  369  ]  executed ;  but  this  seems  irregular,  for  she  may  have  a  par- 
don to  plead,  and  therefore  it  is  to  be  respited  till  another 
sessions.   12  ^ss.  10. 

If  she  have  once  had  the  benefit  of  this  reprieve  and  be  delivered, 
and  afterwards  be  with  child  again  with  another  quick  child,  she 
shall  not  have  the  benefit  of  a  farther  respite  of  the  same  judgment 
for  that  cause;  gnod  vide  23  ^.ss.  2  Coran.  188.  22  E.  3,  ibidem  253. 

K  the  jury  of  women  be  mistaken  in  their  verdict,  and  find  her 
quick  with  child,  where  in  truth  she  was  not  at  all  with  child,  (as 
.once  it  happened  at  Akshriry,)  if  the  next  sessions  of  goal-delivery, 
or  oyer  and  lerviiner  happen  at  that  distance,  that  it  is  impossible  by 
the  course  of  nature,  that  she  could  be  with  child,  but  she  must  be 
delivered  mesne  between  the  former  sessions  and  this,  as  if  it  were 
ten  months,  4*c,  she  shall  be  executed;  but  if  the  second  sessions  hap- 
pen within  such  time  after  the  first,  that  by  course  of  nature  she  may 
still  continue  with  child,  as  if  it  be  within  the  distance  of  six  months 
or  the  like,  then  she  shall  continue  under  the  first  reprieve  till  an- 
other session,  nam  licet  lempus  ordinurium  vilalis  foetus  sit  post 


HIStORIA  PLACiTORUM  CORON.^.  369 

16.  vel  IS.  septimanas  post  impregnatam,  tamen  in  quibusdam 
citiiis  contingere  potest  juxta  medicoriim  placita. 

If  in  truth  she  were  not  with  child  with  a  quick  child  at  the  time, 
when  the  jury  gave  their  verdict,  but  became  quick  after,  nay  tho 
she  were  not  at  all  with  child  then,  but  became  with  child  before  the 
time  of  the  second  session  with  a  quick  child,  in  my  opinion  she  shall 
have  a  second  reprieve  by  reason  of  pregnancy,  for  the  advantage  that 
she  had  at  first  was  not  really  because  of  pregnancy,  but  by  a  mis- 
take of  the  jury  of  women,  and  therefore  in  favorern  prolis  she  shall 
now  have  it. 

And  therefore,  as  hath  been  said,  in  all  cases  of  reprieves  for  pregr 
nancy  the  judge  ought  to  make  a  new  demand,  what  the  prisoner  hath 
to  say,  wherefore  execution  should  not  be  awarded,  for  the  first 
respite  being  by  a  kind  of  matter  of  record  shall  not  be  determined 
withoiit  a  new  award  of  execution;  and  altho  clerks  of  as- 
sises enter  those  respites  and  awards  only  in  a  book  of  [  370  ~\ 
Jigenda,  yet  regularly  they  are  supposed  to  be  entered  of 
record,  and  these  memorials  are  warrants  for  such  entries,  tho  de 
facto  it  be  not  usually  done.  [6] 

Another  cause  of  regular  reprieve  is,  if  mesne  between  the  judg- 
ment and  the  award  of  execution  the  offender  become  non  compos 
7nentis,{i)  the  judge  in  that  case  may  both  in  case  of  treason  and 
felony  swear  a  jury  to  inquire  ex  officio,  whether  he  be  really  so,  or 
only  feigned  or  counterfeit;  and  thereupon  if  it  be  found  that  he  be 
really  distracted,  must  award  a  reprieve  de  jure  till  another  sessions, 
Co.  P.  C.  p.  4.  and  the  statute  of  33  H.  S.  cap.  20.  that  directed  an 
execution  of  parties  convict  of  treason  notwithstanding  insanity  inter- 
vening after  judgment  is  repeald,  by  1  4*  2  P.  <^'  M.  de  quo  supra 
p.  283. 

Now  as  to  the  abating  of  some  parts  of  the  execution  in  case  of 
high  treason,  as  drawing,  hanging,  evisceration  and  quartering,  and 
leaving  the  offender  only  to  be  beheaded,  this  may  be,  and  usually  is 
by  the  king's  warrant  under  his  great  seal,  privy  seal,  yea  or  his  privy 
signet,  or  sign  manual,  as  usually  is  done  in  case  of  noblemen  or 
great  men  falling  under  that  judgment,  for  one  part  of  the  judgment, 
viz.  decollation,  and  the  substance  of  the  whole  judgment,  ?;<>.  the 
death  of  the  party,  is  performed. [7] 

(i)  See  Sir  John  Hawles^s  remarks  on  the  trial  of  diaries  Bateman,  Slate  Tr.  Vol.  IV. 
p.  204. 

[6]  The  warrant  to  execute  a  man  in  England  is  nothing  more  than  a  marginal  note! 
4  Bl.  Com.  403. 

[7J  2  BL  Com.  251.  4  id.  380.  388.  1  Burn's  Just.  306.  ''Attainder:'  1  Chit.  Cr. 
Law.  723. 


371  HISTORIA  PLACITORUM  CORONA. 

CHAPTER  XXVIII. 

TOUCHING  THE  CRIME  OF  MISPRISION  OP  TREASON,  AND  FELONY,  &C. 

Tho  the  order  proposed  in  the  beginning  should  refer  misprision  of 
treason  to  that  series  of  offenses,  that  are  not  capital,  yet  because 
this  offense  hath  relation  to  treason,  and  may  be  of  use  to  explain 
the  nature  of  it,  I  shall  here  take  it  into  consideration,  referring 
misprision  in  its  large  and  comprehensive  nature  to  its  proper  place. 
Misprision  of  treason  is  of  two  kinds. 

1.  That  which  is  properly  such  by  the'common  law. 

2.  That  wliich  is  made  misprision  of  treason  by  act  of  parliament. 
Misprision  of  treason  by  the  common  law  is,  when  a  person  knows 

of  treason,  tho  no  party  or  consenter  to  it,  yet  conceals  it  and  doth 
not  reveal  it  in  convenient  time. 

Tho'  some  question  was  antiently,  whether  bare  concealment  of 
high"  treason  were  treason,  yet  that  is  settled  by  the  statute  of  5  4'  6 
E.  6.  cap.  11.  and  1  4'  2  P.  fy  M.  cap.  10.  viz.  that  concealment  or 
keeping  secret  of  high  treason  shall  be  deemed  and  ta:ken  only  mis- 
prision of  treason,  and  the  offender  therein  to  suffer  and  forfeit,  as 
in  cases  of  misprision  of  treason,  as  hath  heretofore  been  used:  tho 
in  the  time  of  Henry  VIII.  and  Edward  VI.  some  things  were  made 
misprision  of  treason,  that  were  not  so  formerly,  yet  by  the  statute 
of  1  Mar.  cap.  1.  it  is  enacted,  that  nothing  be  adjudged  to  be  trea- 
son, petit  treason,  or  misprision  of  treason,  but  what  is  contained  in 
the  statute  of  25  E.  3.  and  altho  that  act  of  25  E.  3.  do  not  make  or 
declare  misprision  of  treason,  yet  it  doth  it  in  effect  by  declaring  and 
enacting  what  is  treason,  which  is  the  matter  or  subject  of 
["372  1  misprision  of  treason,  tho  the  misprision  or  concealment 
thereof  be  a  crime,  which  the  common  law  defines  what 
it  is. 

Therefore  since  the  statute  of  25  E.  3.  is  by  the  statute  of  1  Mar. 
cap.  1.  made  the  standard  of  treason,  it  remains  to  be  enquired, 
what  shall  be  said  the  concealment  of  such  a  treason  according  to 
the  reason  and  rule  of  the  common  law. 

If  a  man  knew  of  a  treason,  by  the  old'law  in  Bracton's  time  he 
was  bound  to  reveal  it  to  the  king  or  some  of  his  council  within  two 
days,  r/iiod  si  ad  tempiis  dissimulaverit  ^'  sub/icucrii,  quasi  con- 
sentiens,  4*  assentiens  erit  sedtictor  domini  regis ;{a)  but  at  this 
day  it  is  but  misprision,  if  he  reveals  it  not  as  soon  as  he  can  to 
some  judge  of  assise,  or  it  seems  to  some  justice  of  peace,  for  tho 
the  crimes  of  treason  or  misprision  of  treason  be  not  within  the  com- 
mission of  a  justice  of  peace  to  hear  and  determine,  yet,  as  it  is  a 
breach  of  the  peace,  the  justices  of  peace  may  take  information 
upon  oath  touching  it,  and  take  the  examination  of  the  offenders 

(o)  Bract.  Lib.  III.  de  corona,  cap.  3. 


HISTORIA  PLACITORUxM  CORONA.  372 

and  imprison  them,  and  bind  over  witnesses,  and  transmit  these 
examinations  and  informations  to  the  next  sessions  of  gaol-delivery 
or  oyer  and  terminer  to  be  further  proceeded  npon  as  is  truly- 
observed  by  Mr.  Dalton,{h)  cap.  90.  nay,  I  have  known  chief  jus- 
tice Rolls  affirm,  that  justices  of  the  peace  may  take  an  indictment 
of  treason,  tho  they  cannot  determine,  viz.  as  an  information  or 
accusation  tending  to  the  preservation  of  the  peace. 

But  some  treasons  enacted  by  some  statutes  are  limited  to  be  heard 
and  determined  by  them,  as  appears  in  some  of  the  statutes  before 
mentioned,  p.  350. 

It  is  said  3  H.  7.  10.  Stamf.  38.  n.  Dalton,  cap.  89.,(c)  the  utter- 
ing of  false  money  known  to  be  false  is  misprision  of  treason  ;  but 
it  is  a  mistake;  indeed  it  is  a  great  misprision,  but  not  misprision  of 
treason,  unless  the  utterer  know  him  that  counterfeited  it,  and  con- 
ceal it,  this  indeed  is  misprision  of  treason,  but  not  the 
uttering  of  it,  for  the  money  is  not  the  traitor,  but  he  that  [  373  ] 
counterfeited  it,  and  his  counterfeiting  is  the  treason. 

As  all  treasons  and  declarations  of  treasons  between  25  E.  3.  and 
1  Mar.  are  repealed  by  1  ]\Tar.  cap.  1.  so  consequently" all  mispri- 
sions of  any  other  treason  not  contained  in  25  E.  3.  are  thereby 
repealed.  Coke  P.  C.  p.  24.  hath  these  words,  Misprision  of  treason 
is  taken  for  concealment  of  high  treason  or  petit  treason,  and  onlij 
of  high  treason  or  petit  treason  specified  and  expressed  in  the  act 
of  25  E.  3.  and  in  the  margin,  that  is  of  such  treason  high  or  petit, 
as  is  expressed  in  the  act  of  25  E.  3.  and  of  no  other  treason  /and 
accordingly  uttering  of  counterfeit  coin  was  agreed  by  the  court(c^) 
at  Newgate.,  Jill  gust  1661.  to  be  neither  treason  or  misprision  of 
treason  within  the  statute  of  25  E.  3.  but  only  punishable  with  fine 
and  imprisonment;  ex  libra  domini  Bridgman  manii  sua  scripto. 

If  a  subsequent  act  of  parliament  after  1  Mar.  make  a  new  trea- 
son, the  concealment  of  such  a  treason  is  certainly  misprision  of  trea- 
son for  these  reasons,  1.  Because  misprision  of  treason  is  not  any 
substantive  crime  of  itself,  but  relative  to  that,  which  is,  or  is  made 
treason,  and  a  kind  of  necessary  consequent  and  result  from  it,  as  the 
shadow  follows  the  substance.  2.  And  hence  it  is,  that  tho  the 
statute  of  25  E.  3.  does  not  by  express  words  enact  misprision  of 
treason,  to  be  an  offense,  yet  treasons  being  settled  by  that  act,  the 
statute  of  1  Mar.  cap.  1.  enacts  there  shall  be  no  misprision  of  trea- 
son but  what  is  enacted  by  the  statute  of  25  E.  3.  for  tho  that  act 
speaks  not  of  misprision  of  treason,  yet  settling  those  things  that  are 
treason,  it  doth  virtually  and  consequentially  make  the  concealing  of 
'any  of  them  misprision  of  treas'^n  ;  but  yet  farther,  when  the  act  of 
•1  4*  2  P.  4'  M.  cap.  10.  enacts  divers  new  treasons,  tho  it  enacts 
nothing  to  make  the  concealment  thereof  misprision,  yet  in  the  pro- 
viso abovementioned  it  takes  notice,  that  concealment  of  any  of  these 

(6)  New  Edit.  cap.  ]41.p.  460. 
'  (c)  New  Edit.  cap.  140.  p.  452.     This  last  book  says  it  is  misprision  of  treason,  but 
the  other  two  only  say  it  is  a  misprision, 
{d)  In  the  case  of  Richard  Oliver,  Kel.  33. 


373  HISTORIA  PLACITORUM  CORONA, 

treasons  would  be  at  least  misprision  of  treason,  and  therefore  pro- 
vides that  the  concealment  thereof  shall  not  be  adjudged 
[374]  treason,  but  only  misprision  of  treason,  any  thing  above- 
mentioned  to  the  contrary  thereof  notwithstanding;  and  the 
like  clause  is  in  the  abovementioned  statute  of  5  <§•  6  E.  6.  cap.  11. 
Again,  my  lord  Coke,  P.C.  cup.  65.  p.  139.  says,  As  in  case  of 
high  f}'eason,  tvhethe?'  the  treason  be  by  the  common  law  or  statute, 
the  concealment  of  it  is  misprision  of  treason ;  so  in  case  of  felony, 
whether  the  felony  be  by  the  common  law  or  by  statute,  the  con-- 
cealment  of  it  is  misprision  of  felony;  so  that  certainly,  if  a  felony 
or  a  treason  be  enacted  by  a  new  law,  the  concealment  of  the  former 
falls  under  the  crime  of  misprision  of  felony,  and  the  latter  under  the 
crime  of  misprision  of  treason,  as  a  consequent  of  it  without  any  spe-' 
cial  words  enacting  it  to  be  so. 

All  treason  is  misprision  of  treason  and  more,  and  therefore,  he 
tliat  is  assisting  to  a  treason,  may  be  indicted  of  misprision  of  trea- 
son, if  the  kills  pkase.  Stamf  P.  C.  37.  b.  Co.  P.  C.  36.  2  R.  3. 
10  b. 

Altho  the, statute  of  1  S,'  2  P.  S,-  M.  cap.  10.  hath  as  to  treasons 
repealed  the  statute  of  33  //.  8.  cap.  23.  for  trying  treasons  in  one 
county  committed  in  another,  yet  it  hath  not  repealed  the  same 
statute  as  to  the  trial  of  murder  and  misprision  of  treason,  which 
may  yet  be  tried  according  to  the  statute  of  33  H.  8.  cap.  23. 

In  case  of  misprision  of  treason  and  misprision  of  felony,  as  well 
as  in  case  of  treason  or  felony,  or  accessary  thereunto  a  peer  of  this 
kingdom  shall  be  tried  by  peers,  but  the  indictment  is  to  be  by  a 
common  grand  inquest.  2  Co.  Inst.  49. 

The  judgment  in  case  of  misprision  of  treason  is  loss  of  the  profits 
of  his  lands  during  his  life,  forfeiture  of  goods,  and  imprisonment 
during  life. 

Ey  what  hath  been  said  touching  misprision  of  treason  v/e  may 
easily  collect  what  is  the  crime  of  misprision  of  felony,  namely,  that 
it  is  the  concealing  of  a  felony  which  a  man  knows,  but  never  con- 
sented to,  for  if  he  consented,  he  is  either  principal  or  accessary  in 
the  felony,  and  consequently  guilty  of  misprision  of  felony  and  more. 

The  judgment  in  case  of  misprision  of  felony  in  case  the  concealer 

be  an  officer,  as  sheriff  or  bailiff,  S^c.  is  by  the  statute  of 

\_  375  ~\  PFestminst.  1  cap.  9.(e)  imprisonment  for  a  year  and  ransom 

at  the  king's  pleasure;  if  by  a  common  person,  it  is  only 

fine  and  imprisonment. 

And  note  once  for  all,  that  all  those  acts  of  parliament,  that  speak 
of  fines  or  ransoms  at  the  king's  pleasure,  are  always  interpreted  of 
the  king's  justices :  vide  Co.  Magna  Carta  super  slat.  Westtninst. 
1  cap.  4.  in  fine{f)  <§•  saepius  alibi.  2  R.  3.  11.  a.  voluntas  regis  in 
curia,  not  in  camerd.' 

And  it  seems,  that  misprision  of  petit  treason  is  not  subject  to  the 
judgment  of  misprision  of  high  treason,  but  only  is  punishable  by  fine 
and  imprisonment,  as  in  case  of  misprision  of  felony. 

(e)  2  Co.  Inst.  172.  (/)  2  Co.  Inst.  168. 


HISTORIA  PLACITORUM  CORONA.  375 

II.  I  come  to  misprisions  of  treason  so  enacted  by  acts  of  parlia- 
ment since  1  Mar.  cap.  1.  for,  as  before  is  observed,  by  that  act  all 
misprisions,  that  by  any  statnte  made  after  25  E.  3,  are  either 
expressly  or  consequentially  made  misprisions  of  treason,  are  repealed 
and  set  aside. 

All  acts  of  parliament,  that  after  1  Mar.  enacted  any  thing  to  be 
high  treason,  do  consequentially  make  the  concealment  thereof  to  be 
misprision  of  treason,  tho  it  do  not  in  express  words  enact  the  con- 
cealment thereof  to  be  misprision  of  treason,  as  hath  been  before 
shewn,  and  the  like  in  case  of  felony. 

And  consequently  those  acts  of  parliament,  which  enacted  tempo- 
rary treasons,  as  the  statute  of  1  4*  2  P.  4'  M.  cap.  10,  the  act  of 
1  Eliz.  cap.  5.  (^'C.  so  far  forth  as  they  are  temporary,  the  misprisions 
of  such  treasons  are  also  temporary,  and  expire  with  the  act,  and 
where  the  acts  of  treason  are  perpetual,  or  being  but  temporary,  are 
made  perpetual  by  some  other  act  of  parliament,  the  misprision  of 
such  treasons  remains  such,  as  long  as  the  act  of  parliament  making 
such  treason  continues,  or  is  continued,  as  upon  the  statutes  of  5  Eiiz. 
and  18  Eliz.  1  Mar.  touching  counterfeiting  of  foreign  coin  made 
current  by  proclamation,  or  clipping  or  washing  coin. 

And  the  like  is  to  be  said  in  all  respects  of  misprision  of  felony 
made  so  by  act  of  parliament. 

But  besides  these  crimes,  that  are  consequentially  mispri- 
sion of  treason,  some  oifenses  are  made  misprision  of  trea-  [376  J 
son,  as  a  kind  of  substantive  offense,  and  not  consequential 
upon  the  making  of  treason,  but  particularly  enacted. 

Those  of  that  kind,  that  are  perpetual  and  have  continuance,  are 
as  follow : 

14  Eiiz.  cap.  3.  "They  that  counterfeit  foreign  coin  of  gold  or 
silver  not  permitted  to  be  current  in  this  kingdom,  their  procurers, 
aiders,  and  abetters  shall  suffer,  as  in  case  of  misprision  of  treason. 

And  note,  that  in  that  act  (aiders)  are  intended  of  aiders  in  the  fact, 
not  aiders  of  their  persons,  as  receivers  and  comforters,  for,  as  hath 
been  observed  /?.  236.  in  some  acts  of  parliament  aiders  being  joined 
with  procurers,  counsellors  and  abetters  are  intended  of  those,  that 
are  aiding  to  the  fact;  but  in  other  acts  of  parliament,  where  the 
word  aiders  is  joined  with  maintainers  and  comforters,  it  is  intended 
of  those,  that  are  aiders  ex  post  facto  to  their  persons;  see  this  diifer- 
ence  in  the  penning  of  several  acts  of  parliament,  for  the  first  part 
5  Eliz.  cap.  11.  18  Eliz.  cap.  1.  1  Mar.  sess.  2.  cap.  6.  touching  coin, 
and  for  the  second  part  this  express  distinction  observed  13  Eliz. 
cap.  2.  touching  publishing  of  bulls  of  absolution,  where  the  former 
kind  are  enacted  to  be  traitors;  the  second  incur  a  prxmunirc;  the 
like  23  Eliz.  cap.  1. 

13  Eliz.  cap.  2.  "If  any  bull  or  absolution,  or  instrument  of  re- 
conciliation to  the  see  oi  Rome  be  offered  to  any  person,  or  if  any 
person  be  moved  or  perswaded  to  be  reconciled,  if  he  conceal  the 
said  of!er,  motion  or  perswasion  and.  doth  not  discover  or  signify  it 
by  writing  or  otherwise  within  six  weeks  to  some   of  the   privy 


376  HISTORIA  PLACITORUM  CORONA. 

council,  Sf'C.  he  shall  incur  the  penalty  and  forfeiture  of  misprision 
of  treason,  and  that  no  person  shall  be  impeached  for  misprision  of 
treason  or  any  offense  made  treason  by  this  act,  other  tiian  sucii  as 
are  before  declared  to  be  in  case  of  misprision  of  treason:"  noia, had 
it  not  been  for  this  cause  the  concealment  generally  of  any  treason 
within  this  act  had  been  misprision  of  treason. [1] 

23  Eliz.  cap.  1.  "All  persons,  that  shall  put  in  practice  to 
[  377  ]]  absolve  or  withdraw  the  subjects  of  the  queen  from  their 
obedience,  or  to  that  end  perswade  them  from  the  religion 
here  established,  or  if  any  person  shall  be  so  absolved,  every  such 
person,  and  their  counsellors  and  procurers  thereunto,  shall  bead- 
judged  guilty  of  high  treason. 

"And  all  persons,  that  shall  wittingly  be  aiders  and  maintainors  of 
such  person  so  offending,  or  any  of  them,  knowing  the  same,  or 
which  shall  conceal  any  offense  aforesaid,  and  not  reveal  it  within 
twenty  days  after  his  knowledge  thereof  to  some  justice  of  peace,  or 
other  higher  officer,  he  shall  suffer  and  forfeit,  as  in  misprision  of 
treason. [2] 


CHAPTER  XXIX. 


CONCERNING    PETIT    TREASON. 


As  at  common  law  there  was  great  uncertainty  in  high  treason,  so 
there  was  in  petit  treason. 

It  is  true,  that  all  the  petit  treasons  declared  in  this  statute(«)  were 
petit  treasons  at  common  law,  as  for  a  servant  to  kill  his  master  or 
mistress,  12  ^ss.  30.  a  woman  to  kill  her  husband,  as  appears  15  E.  2. 
Corone  383.  and  the  judgment  was  the  same  at  common  law  in  such 
cases,  as  now,  and  the  lands  of  him,  that  was  attaint  of  petit  treason, 
escheted  to  the  mesne  lord,  of  whom  they  were  held,  22  Jiss.  49.  so 
that  as  to  these  things  the  act  of  25  E.  3.  was  but  an  affirmance  of 
the  common  law. 

But  yet  there  were  certain  offences,  that  Were  petit  treason  atcom- 

(o)  viz.  25  Edw.  3. 

[1]  See  1  East,  P.  C.  139.  4  Bl.  Com.  120. 

[2]  It  has  been  enacted  by  Sect.  2.  of  the  act  of  Congress  of  April  30,  1790,  that  if  any 
person  or  persons  having  knowledge  of  the  commission  of  any  ot'the  treasons  defined  by 
tiiat  act,  shall  conceal  and  not  as  soon  as  may  be  disclose  and  make  known  the  same  to 
the  President  of  the  United  States,  or  some  one  of  the  Judges  thereof,  or  to  the  President 
or  Governor  of  a  particular  State,  or  some  one  of  the  Judges  or  Justices  thereof,  such 
person  or  persons  on  conviction  shall  be  adjudged  guilty  of  misprision  of  treason,  and 
shall  be  imprisoned  not  exceeding  seven  years,  and  fined  not  exceeding  one  thousand 
dollars.  Weidle''s  case,  2  Dall.  88.  was  an  indictment  for  misprision  of  treason  for  speak- 
ing certain  words  tending  to  excite  resistance  to  the  government  of  the  commonwealth 
of  Pennsylvania.  No  instance  of  this  offence  has  occurred  against  the  government  of 
the  United  States. 


HISTORIA  PLACITORUM  CORONA.  377 

mon  law,  that  are  restrained  and  abrogated  by  this  statute  from  being 
petit  treason. 

15  E.   2.  Corone  383.    A  woman  intending  to    kill  her 
husband  beat  him  so,  that  she  left  him  for  dead,  but  yet  he  [  378  ] 
recovered,  for  this   attempt   the  wife  had  judgment  to  be 
burned. 

Fleta,  Lib.  I.  cap.  22.  Britton,  cap.  8.  If  the  homager  or  servant 
falsify  the  seal  of  his  lord,  or  had  committed  adultery  with  the  lord's 
wife  or  daughter,(A)  it  was  petit  treason. 

But  these  are  taken  away  by  this  act  of  25  E.  3.  and  are  reduced 
only  to  these  three  ranks: 

1.  The  servant  killing  his  master  or  mistress,  2.  The  wife  killing 
her  husband.  3.  The  clergyman  killing  his  prelate  or  superior,  to 
whom  he  owes  faith  and  obedience. 

All  petit  treason  comes  under  the  name  of  felony,  and  a  pardon  of 
all  felonies,  where  petit  treason  is  not  excepted,  at  common  law  par- 
doned petit  treason,  and  so  at  this  day  doth  a  pardon  of  murder. 

A  man  or  woman,  that  commits  petit  treason,  may  be  indicted  of 
murder,  but  if  all  felonies,  S^c.  are  pardoned  by  act  of  parliament, 
wherein  there  is  an  exception  of  murder,  it  seems  that  a  murder, 
which  is  a  petit  treason  also,  is  discharged  and  not  within  the  excep- 
tion, M.  6^-7  Eliz.  Dyer.  235.(c) 

The  killing  of  a  master  or  husband  is  not  petit  treason,  unless  it 
be  such  a  killing,  as  in  case  of  another  person  would  be  murder,  and 
therefore  upon  an  indictment  of  petit  treason  for  a  servant  killing  his 
master,  if  upon  the  circumstances  of  the  case  it  appears  to  be  a  sud- 
den falling  out,  and  the  servant  upon  a  sudden  provocation  kills  his 
master,  which,  in  case  it  had  been  between  other  persons,  had  been 
only  manslaughter,  the  jury  may  acquit  him  of  petit  treason,  and  find 
him  guilty  of  manslaughter;  and  thus  it  was  once  done  before  me 
at  Dorchester  assizes,  and  another  time  before  justice  Windham  at 
Coventry  assizes,  tho  the  indictment  were  for  petit  treason. 

If  a  wife  conspire  to  kill  her  husband,  or  a  servant  to  kill  his  mas- 
ter, and  this  is  done  by  a  stranger  in  pursuance  of  that  con- 
spiracy, it  is  not  petit  treason  in  the  servant  or  wife,  because  [^379  ] 
the  principal  is  only  murder,  and  the  being  only  accessary, 
where  the  principal  is  but  murder,  cannot  be  petit  treason;  but  if  the 
wife  and  a  servant  conspire  the  death  of  the  husband,  being  his  mas- 
ter, and  the  servant  etiect  it  in  the  absence  of  the  wife,  it  is  petit 
treason  in  the  servant,  and  she  is  accessary  before  to  the  petit  treason, 
and  shall  accordingly  be  indicted  and  burnt  P.  16.  Eliz.  Dy.  332.  a. 
40  Jiss.  25. 

If  the  servant  and  a  stranger,  or  the  wife  and  a  stranger  conspire 
to  rob  the  husband  or  master,  and  the  servant  or  wife  be  present  and 

(J))  Biitlon  adds,  or  the  nurses  of  Ms  children. 

(c)  The  reason  of  this  is,  because  petit  treason  is  an  offense  of  another  species,  6  Co. 
Rep.  13.  b.  but  then  by  the  same  reason  a  pardon  o( imirde.r  does  not  include  a  pardon  of 
petit  treason,  nor  can  one  guilty  of  jietit  treason  be  indicted  of  murder.  See  Rex  versus 
Crispe,  State  Tri.  Vol.  VI.  p.  224,  225. 


379  HISTORIA  PLACITORUM  CORONA. 

hold  the  candle,  [while  the  husband  or  master  is  killed,*]  the  stranger 
is  guilty  of  murder,  and  the  wife  or  servant  guilty  of  pelit  treason  as 
principal,  because  present,  2  S,^  3  P.  8,-  M.  Dy.  128.  a. 

So  that  the  statute  of  25  E.  3.  doth  not  only  extend  to  the  party, 
that  actually  commits  the  offense,  but  also  to  those  that  were  procu- 
rers, aiders  or  abetters,  scilicet,  if  they  be  present,  they  are  guiity  of 
petit  treason  as  principals,  if  absent,  yet  if  the  offense  in  the  prmcipal 
be  petit  treason,  the  offense  in  the  accessary  before  is  petit  treason,  as 
accessary,  as  in  BroiDn^s  case,  Dy.  332.  a. 

If  a  wife  or  a  servant  intending  to  poison  or  kill  a  stranger,  and 
missing  the  blow  the  wife  by  mistake  kills  or  poisons  her  husband,  or 
the  servant  his  master,  this,  that  would  have  been  murder,  if  it  had 
taken  etlect  against  the  stranger,  becomes  petit  treason  in  the  death 
of  the  husband  or  master.  Plowd.  Com.  475.  b.  Crompt.  de  pace 
regis  20.  b.  and  Dolt.  cap.  d\.{d)  so  if  he  shoot  at  J.  *SVand  missing 
him  kills  his  master.   Ibid. 

If  the  wife  or  servant  conspire  with  a  stranger  to  kill  the  husband 
or  master,  if  the  wife  or  servant  be  in  the  same  house,  where  the  fact 
is  done,  tho  not  in  thd*  same  room,  it  is  petit  treason  in  them,  and 
they  are  principals  in  law,  because  in  law  adjudged  to  be  present, 
when  in  the  same  house;  but  if  they  had  been  absent,  then 
[  380  3  they  had  been  only  accessaries  before  the  fact  to  murder. 
Crompt.  de  pace  regis  21.  a.  Blechendeii's  case. 

If  the  wife  or  servant  conunand  one  to  beat  (he  husband  or  master, 
and  he  beat  him,  whereof  he  dies,  if  the  wife  or  servant  be  in  the 
same  house,  it  is  petit  treason  in  the  wife  or  servant  as  principals,  but 
murder  in  the  stranger.    Crumpt.  20.  b.  Plowd.  Com.  475.  b. 

For  whatsoever  will  make  a  man  guilty  of  murder  will  make  a 
woman  guilty  of  petit  treason,  if  committed  upon  the  husband,  or  the 
servant,  if  committed  upon  the  master. 

Eadem  lex  mutatis  mutandis  for  an  inferior  clergyman  in  relation 
to  his  superior. 

But  now  to  descend  to  particulars. 

I.  A  servant  killing  his  master. 

Who  shall  be  said  a  servant  or  a  master. 

If  the  servant  kills  his  mistress  or  his  master's  wife,  this  is  petit 
treason  within  this  act.  19  H.  6.  47.  Plowd.  Com.  86.  b.  Co.  P.  C. 
20.  12  JJss.  30. 

If  a  servant,  being  gone  from  his  master,  kills  him  upon  a  grudge, 
that  he  conceived  against  his  master,  while  he  was  in  his  service, 
which  he  attempted  while  his  servant,  but  was  disappointed,  it  is 
petit  treason.  33  Jlss.  7.  Plowd.  Com.  260.  a.  Co.  P.  C.  20. 

If  a  child  live  with  his  father  as  a  servant,  as  if  he  receive  wages 
from  him,  or  meat  and  drink  for  his  service,  or  be  bound  apprentice 
to  him,  and  kills  his  father  or  mother,  this  is  petit  treason  at  this 
day.(/)     . 

*  These  words  arc  not  in  the  MS.  but  they  are  in  the  case  cited  from  Dyer,  and  the 
eense  plainly  re()uires  tliem. 

{d)  New  Edit,  cap,  142.  p.  462.  (/)  1  Mar.Dalison  14. 


HISTORIA  PLACITORUM  CORONA.  380 

But  if  he  receives  no  wages,  nor  meat  and  drink  for  his  service,  or 
be  not  bound  apprentice  to  him,  but  only  is  his  son  and  not  his  ser- 
vant, and  kills  his  father,  this  was  petit  treason  at  common  law. 
21  E.  3.  17.  b.  per  Tfinrp;{g)  but  the  better  opinion  is,  that  it  is  not 
petit  treason  at  this  day,  because  this  statute  of  25  E.  3.  shall  not  in 
this  case  be  extended  by  equity:  quod  vide  Co.  P.  C.  20.  Lamhart 
Jiistic.  248.  Crompt  19.  6., 

II.  The  wife  killing  her  husband. 

If  the  husband  kill  the  wife  it  is  murder,  not  petit  treason,  [  381  ] 
because  there  is  subjection  due  from  the  wife  to  the  hus- 
band, but  not  ^  converso. 

If  the  wife  be  divorced  from  the  husband  causa  aduUerii  vel 
saevi/iK, she  is  yet  a  wife  within  this  law,  because  this  dissolves  not 
the  vincuiu7?i  matrimonii  by  our  law,  for  they  may  cohabit  again, 
but  otherwise  it  is,  if  they  be  divorced  causa  consanguinitatis  or 
prxcontractdsf  for  then  the  vinculum  is  dissolved,  they  are  no  more 
husband  and  wife. 

If*.'?,  be  married  to  B.  and  during  that  intermarriage  t/?.  marries 
Cf  tho  C.  be,  as  to  some  purposes,  a  wife  de  facto,  yet  she  is  not  a 
wife  within  this  law,  for  the  second  marriage  was  merely  void,  tho 
perchance  she  may,  upon  circumstances,  be  a  servant  within  the  for- 
mer clause,  if  she  cohabit  with  Ji.  and  he  finds  her  necessaries  for 
her  subsistence;  tamen  quxre. 

III.  The  clergyman  killing  his  prelate,  &;c. 

If  a  clergyman  living  and  beneficed  in  tbe  diocese  o{  Ji.  kills  the 
bishop  o{  that  diocese, it  is  petit  treason;  but  if  he  kills  the- bishop  of 
the  diocese  of  jB.  it  is  only  murder. 

If  a  clergyman  hath  a  benefice  in  the  diocese  of  .^.  and  after,  by 
dispensation  takes  a  benefice  in  the  diocese  of  B.  if  he  kills  the 
bishop  of  one  diocese  or  the  other,  it  is  petit  treason,  for  he  owes  and 
swears  upon  his  institution  canonical  obedience  to  the  bishop  of  each 
diocese. 

If  a  clergyman  beneficed  in  the  diocese  o{  A.  within  the  province 
of  C.  kills  his  metropolitan,  it  seems  it  is  petit  treason,  tho  he  be  not 
his  immediate  superior. 

If  a  clergyman  be  ordained  by  the  bishop  of  A.  in  ordinem 
diaconi,  sive  preshyteri  sine  titulo,  yet  it  seems  if  he  kills  the 
bishop  it  is  peiit  treason,  for  he  professeth  canonical  obedience  upon 
his  ordination. 

,  ^  Concerning  proceedings  in  petit  treasons. 
•.  In  high  treason  all  are  principals,  but  in  petit  treason  there  are 
principals  and  accessaries,  as  well  before,  as  after. 

If  the  principal  be  only  murder,  as  being  committed  by  a  stranger, 
the  accessary  cannot  be  petit  treason,  tho  she  be  a  wife  or  servant. 
Dy.  332.    Brown's  case  ubi  supra. 

ig)  The  book  says,  he  was  indicted  for  killing  his  mere  (Iiis  mother)  but  Coke  P.  C.  ■ 
p.  20.  says  it  is  misprinted,  and  that  it  should  be  read  maistre,  (his  master)  for  mre  being 
abreviated,  (as  periiaps  it  was  in  the  MS.  of  tlje  year  booko)  muy  be  read  either  way,  tho 
the  last  seems  the  most  probable. 


382  HISTORIA  PLACITORUM  CORONA. 

But  if  the  principal  be  petit  treason,  as  being  committed  by  a 
wife  upon  her  husband,  or  by  a  servant  upon  his  master  or  mis- 
tress, if  the  accessary  be  of  the  same  relation,  viz.  a  servant  or 
wife,  the  judgment  shall  be  given  against  the  accessary,  as  in  petit 
treason;  but  if  the  accessary,  whether  before  or  after,  be  a  stranger, 
(ho  such  stranger  be  an  accessary  to  petit  treason,  yet.  the  judg- 
ment shall  be  as  in  a  case  of  felony  ^against  the  accessary,  viz. 
qiind  snspendatttr,  for  tho  he  be  an  accessary  to  petit  treason,  which 
is  the  principal, yet  such  accessary  being  a  stranger  is  not,  nor  can  be 
guilty  of  petit  treason,  because  a  stranger  to  the  party  killed,  and 
neither  wife  nor  servant. 

At  common  law,  and  by  the  statute  of  25  E.  3.  cap.  4.  clergy  was 
allowable  in  case  of  petit  treason,  but  not  in  case  of  high  treason; 
but  now  by  the  statute  of  23  //.  8.  cap.  1.  1  ^.  6.  cap.  12.  clergy  is  ex- 
cluded from  petit  treason,  as  well  as  murder,  and  in  the  same  kind. 

If  a  person  arraigned  of  high  treason  stands  wilfully  mute,  he  shall 
be  convicted  as  hath  been  formerly  shewn  ;[1]  but  if  arraigned  of 
petiftreason,  he  stand  mute, he  shall  have  judgment  of  {*)  peine  fort 
S,'  dure.  Crompt.  19.  h.  Co.  P.  C.  217. 

The  judgment  of  a  woman  convict  of  petit  treason  is  to  be 
burnt, (//)[2]  but  (by  Stamf.  P.  C.fol.  182.  b.)  in  high  treason  to  be 
drawn  and  burnt,  unless  it  be  in  case  of  coin,  and  then  only  to  be 
burnt,  as  in  case  of  petit  treason. 

But  the  judgment  against  a  man  convict  of  petit  treason  is  to  be 
drawn  and  hanged,  trahatur  8^^  svspendatur  per  collum. 

Stamford  in  P.  C.  182.  tells  us,  that  the  execution  of  drawing  is 
to  be  upon  a  hurdle,  but  33  tdss.  7.  Shard  justice  commanded,  that 
nothing  should  be  brought,  whereupon  he  should  be  drawn,  mes 
que  sans  cley  ou  autre  chose  a  desouth  lui  soil  tray  de  chivaux 
hors  de  la  sale,  ou  il  avoit  judgement,  tanque  a  les  furc,  S^-c.  but 
that  severity  is  disused:  he  is  in  such  cases  drawn  upon  a  hurdle  to 
the  place  of  execution. 

And  thus  far  touching  petit  treason. [3] 

(*)  [Peine  fort  and  dure]  but  now  see  the  Stat.  12.  Geo.  3.  cK  20.  as  to  a  person,  ar- 
raigned on  any  indictment,  standing-  mute.     And  3  Burn.  Edit.  1776. p.  211. 

(A)  The  judgment  of  a  woman  convict  of  petit  treason  (or  in  case  of  coin)  is  all  one  as 
in  high  treason,  viz.  tohe  drawn  and  burnt.  Co.  P.  C.p.  211.  and  so  is  the  constant  prac- 
tice. 

[1]  Ante,  p.  224.  [2]  Altered  by  the  30  Geo.  3.  c.  48,  to  hanging. 

[3]  By  the  9  Geo.  4.  c.  31.  s.  2,  "every  offence  whicli  before  the  commencement  of 
this  act  wouUl  have  amounted  to  petit  treason,  shall  be  deemed  to  be  murder  only,  and 
no  grciiter  offence;  and  ail  persons  guilty  in  respect  tliereof,  wlietlier  as  principals  or  as 
accessaries,  shall  bo  dealt  with,  indicted,  tried,  and  punished  as  principals  and  accessa- 
ries in  murder."  The  crime  of  petit  treason  seems  to  be  unknown  to  the  jurisprudence 
of  the  United.Statcs ;  the  otFender  would  in  such  case  bo  tried  as  for  any  other  liind  of 
murder.  Davis'  V}rg.,C.  L.  iQ'J. 


HISTORIA  PLACITORUM  CORONA.  383 


CHAPTER  XXX. 

CONCERNING    HERESY    AND    APOSTACY,    AND     THE    PUNISHMENT 

THEREOF. 

Under  the  general  name  of  heresy  there  hath  been  in  ordinary- 
speech  comprehended  three  sorts  of  crimes:  1.  ^.^Ipostacy,  when  a 
christian  did  apostatize  to  Paganism  or  to  Judaism,  and  the  punish- 
ment hereof,  as  well  by  the  law  of  this  kingdom,  as  by  the  imperial 
laws,  seems  to  have  been  by  death,  namely  burning.  Bract.  Lib.  III. 
de  corona,  cap.  9. (a)  by  the  imperial  law  he  was  subject  to  loss  of 
goods,  Cod.  de  apostatis,  tit.  7.  lege  1.  but  it  appears  not,  whether 
he. were  to  suffer  death.  Ibid.  I.  6.  unless  he  solicited  others  to  apos- 
tacy.(6)  2.  Witclicraft,  Sortilegium  was  by  the  antient  laws  of 
England  of  ecclesiastical  cognizance,  and  upon  conviction  thereof 
without  abjuration,  or  relapse  after  abjuration,  was  punishable  witli 
death  by  writ  de  hxretico  comburendo,  vide  Co.  P.  C.  cap.  6.  «§• 
lihros  ibi,  Extr^  de  hsereticis,  cap.  8.  §.  5.  n.  6.  3*  Formal  heresy; 
the  old  popish  canonists  define  an  heretic  to  be  such,  qui  male  sentit 
vel  docet  de  fide,  de  corpore  Christi,  de  baptismate,  peccatorum  con- 
fessione,  matrimonio,  vel  aliis  sacramentis  ecclesise,  &  generaliter, 
qui  de  aliquo  prasdictorum  vel  de  articulis  fidei  aliter  praedicat,  sentit 
vel  doceat,  quam  docet  sancta  mater  ecclesia:  and  whereas  the 
antient  councils  and  imperial  constitutions  grounded  thereupon  kept 
the  business  of  heresy  within  certain  bounds  and  descriptions,  as  the 
Manichees,  Nestorians,  Eufychians,  4'C.  quod  vide  in  Codice,  Lib.  I. 
tit.  5.  de  hsereticis,  I.  5.  in  the  edict  of  Theodosius  and  Valentinian; 
the  papal  canonists  have  by  ample  and  general  terms  extended 
heresy  so  far,  and  left  so  much  in  the  discretion  of  the  ordinary  to 
determine  it,  that  there  is  scarce  any  the  smallest  deviation  from 
them,  but  it  may  be  reduced  to  heresy  according  to  the 
great  generality,  latitude,  and  extent  of  their  definitions  and  f  384  ] 
descriptions,  whereof  see  the  gloss  of  Lindwood  in  titulo 
de  Hsereticis,  cup.  1.  Beverendissimse  ad  verbum  declarentur:  the 
definition  of  Grostead,  tho  somewhat  general,  is  much  more  rea- 
sonable as  we  have  it  given  by  Mr.  Fox,  Acts  <§'  Mon.  part.  1.  p.  420. 
Est  sententia  hnrnano  sensu  electa,  palani  docta,  pertinaciter 
defensa;  but  of  this  more  hereafter. 

In  this  business  of  heresy,  and  the  punishment  thereof,  I  shall,  as 
near  as  I  can,  use  this  method:  1.  I  will  consider  in  general  who  is 
the  judge  of  heresy  according  to  the  common  and  imperial  law. 
2*  Who  shall  be  said  an  heretic  according  to  tliose  laws.  3.  What 
the  punishment  of  an  heretic  is  according  to  those  laws:  then  I  shall 
consider  more  specially,  viz.  1.  What  was  the  method  of  the  con- 
viction of  heresy  according  to  the  antient  law  used  in  England 

(a)  p.  123.  h.  (b)  Then  it  was  capital,  Lib.  I.  Cod.  tit.  7.  I.  5. 


384  HISTORIA  PLACITORUM  CORONA. 

before  the  time  of  Richard  II,  and  Henry  IV.  And  2,  What  was 
the  usual  punishment  of  heresy  liere  m  England  before  the  time  t)f 
Richard  II.  and  Henry  IV.  3.  I  shall  give  an  account  touching 
the  proceeding  against  heretics  from  the  beginning  of  Richard  II.  to 
the  twenty-fifth  year  of  king  Henry  VIII.  4.  What  is  the  method 
of  proceeding,  and  how  the  law  touching  heresy,  heretics,  and  their 
punishment  from  25  H.  8,  until  the  first  year  of  queen  Elizabeth. 
5.  How  the  law  stood  from  1  Eliz.  to  this  day  touching  this  matter. 

I.  According  to  the  common  and  imperial  law,  and  generally  by 
other  laws  in  kingdoms  and  states,  where  the  canon  law  obtained, 
the  ecclesiastical  judge  was  the  judge  of  heresies,  and  hereby  they 
obtained  a  large  jurisdiction  touching  it,  so  that  there  was  scarce 
any  thing,  wherein  a  man  dissented  from  the  doctrine  or  practice  of 
the  Roman  church,  but  they  took  the  liberty  to  determine  heretical, 
qui  a  recto  tramite,  &  judicio  ecclesise  catholicse  delectus  fuerit 
deviare,  &  is  qui  dubitat  de  fide  catholica,  yea  even,  qui  despicit  & 
negligit  servare  ea,  que  Romana  ecclesia  statuit  vel  servare  decreve- 
rat:  vide  Zy//?f/!ooo^  de  haereticis  in  cap.  Reverendissimse  «rf  2^er6i^m 
declarentur,  which  left  an  excessive  arbitrary  latitude  in  the  eccle- 
siastical judge,  and  a  great  servitude  and  uncertainty  upon  men 

subject  to  their  censures:  the  ecclesiastical  judge  was  either 
r  385  3  extraordinary,  viz.  certain  inquisitors  thereunto  deputed  by 
the  pope,  or  ordinary,  which  was  the  bishop  of  the  diocese, 
as  appears  by  Lindwood  de  hsereticis,  cap.  finaliter  verb,  ordinarius 
in  glossa;{*)  only  for  the  more  solemnity  of  the  business  of  degra- 
dation, which  accompanied  the  sentence  of  heresy  upon  one  in  orders 
before  the  offender  was  left  to  the  secular  power,  there  were  six,  but 
afterwards  three  bishops  to  be  present  in  degradation  a  sacris  ordi- 
nihus,  viz.  the  episcopal^  Presbyteratns,  Diaconatus  <§'  subdiaco- 
7ialus,  but  in  minoribus  ordinibus  there  was  only  required  the 
bishop  and  his  chapter,  canonici  sive  clerici,  6  decretal,  cap.  2.  after- 
ward the  business  of  degradation  was  reduced  to  one  bishop,  viz. 
the  ordinary  of  the  place,  so  far  at  least  as  the  same  respected  the 
ordo  Presbytcratus  and  inferior  orders. 

But  I  do  not  find,  that  by  the  canon  or  civil  law  the  declaratory 
sentence  of  heresy  was  necessary  in  a  provincial  synod,  tho  in  great 
cases,  especially  where  a  priest  was  to  be  degraded,  it  was  most  com- 
monly done  in  a  provincial  synod,  partly  for  the  greater  solemnity  of 
the  business,  and  partly  because  in  such  synods  more  bishops  and 
others  of  the  clergy  were  present;  but  how  the  use  was  in  England 
we  shall  hereafter  see. 

II.  As  to  the  second,  touching  heretics  and  their  discriminations 
according  to  the  canon  law,  they  may  be  distinguished  into  three 
ranks:  1.  Simplex  hxreticus.  2.  Hserelicus  contumax.  3.  Hasreticus 
rela/j.s7is. 

1.  A  simple  heretic  was  such,  as  held  an  heretical  opinion,  but 
being  convened  before  tlie  ordinary,  and  the  opinion  being  substan- 

(*)  See  also  Lindwood  de  hareticis,  cap,  item  quia  verb,  ordinarii. 


HISTORIA  PLACITORUM  CORONA.  385 

tially  declared  heretical,  and  the  party  convicted  thereof,  declares  his 
penitence  and  abjnres  his  opinion,  in  this  case  he  was  dismissed  with- 
out farther  punishment,  and  this  abjuration  might  be  required  by  the 
ordinary,  and  was  of  two  kinds,  viz.  a  special  abjuration,  whereby 
he  abjured  that  single  heretical  opinion,  for  which  he  was  condemned, 
or  a  general  abjuration,  whereby  he  renounced  all  heretical  opinions: 
vide  Lindwond  de  hssrelicis,  cap.  Reverendissimse  verb,  nisi  resipis- 
cant  &  abjuraverint  in  forma  ecclesias  consneta:  and  this  ab- 
juration might  be  required  not  only  of  those,  that  were  de-  [  386  ] 
tected  and  convicted  of  heresy,  but  even  of  those,  that  were 
graviter  suspecti;  and  if  they  refused  it,  they  proceeded  to  sentence 
them  as  convict:  Extr''  de  Hsereticis,  cap.  ad  aboleiidam. 

2.  A  contumacious  heretic  was  among  them  of  two  kinds:  1.  Such. 
as  refused  to  appear  before  the  ordinary,  being  accused  of  heresy, 
and  thereupon  were  duly  excommunicate  and  so  continued  excom- 
municate for  one  year,  turn  velut  hxreticiis  condernnetur,  and  was 
thereupon  delivered  or  left  to  the  secular  power,  de  hxrelicisy  cap.  7. 
cum  conlumacid  in  6io,  4'C.  2.  Where  the  party  accused  of  heresy 
was  convict  by  testimony  of  his  own  confession,  and  refused  to  repent 
and  abjure,  such  a  one  might  thereupon  be  sentenced  as  an  heretic, 
and  delivered  over  to  the  secular  power,  but  yet  he  had  this  favour 
or  privilege,  if  even  after  such  sentence  he  willingly  repented  and 
abjured,  the  ordinary  ought  to  accept  thereof,  and  not  deliver  him 
over  to  the  secular  power,  but  he  was  spared.  Lindwood  de  Hx- 
reticis,  cap.  Reverendissimse  verb,  resipiscant,  4'  Extr^  de  Hsereticis^ 
cap.  ad  abolend.  verb,  sponte  recurrere;  but  then  tlie  ordinary  might 
detain  him  in  prison:  vide  accordant  1  Mar.  Br.  Heresy. 

3.  A  relapsed  heretic:  and  herein  they  distinguish  between  Jicth 
relapsus,  <^'  vert  relapsiis:  Lindwood  de  hsereticis  cap.  item  quia, 
wrb.  relapso:  1.  The  former  is  where  a  man  is  accused  of  heresy,  and 
is  under  a  great  suspicion  thereof,  but  not  convicted,  only  the  ordi- 
nary puts  him  to  abjure,  which  accordmgly  he  doth,  and  afterwards 
doth  entertain,  visit,  or  comfort  heretics,  such  a  person  by  the  canon 
law  may  be  sentenced  as  an  heretic  relapsed,  and  delivered  over  to 
the  secular  power,  but  yet  the  ordinary  may,  as  before,  detain  him  in 
prison  without  actual  delivering  of  him  over  to  the  secular  judge  to 
be  executed.  Lindwood  ubi  supra,  <§•  in  6to  decretal,  cap.  S.^rcu- 
sat'  de  hsereticis.  2.  Vere  relapsus  is,  when  a  man  being  convicted 
of  heresy,  and  abjuring  again  falls  into  heresy,  if  he  be  thereupon 
convicted  and  sentenced,  there  can  be  no  suspension  of  the  sentence 
by  the  ordinary,  tho  the  party  repent  and  conform,  but  he  must  be 
delivered  over  to  the  secular  power,  and  the  sentence  ought 

to  be  given,  and  is  not  by  any  means  to  be  suspended  from  [  387  J 
execution  :  (ito  de  Hsereticis,  cap.  4. 

But  this  relapsing  is  of  two  kinds  according  to  the  quality  of  his 
abjuration:  if  the  abjuration  be  general  of  all  heresies,  if  he  after  fall 
into  any  heresy,  either  that  whereof  he  was  formerly  accused  and 
convicted,  or  any  other,  lie  is  to  be  sentenced  as  a  relapsed  heretic; 
but  if  the  abjuration  be  only  special  of  that  heresy  whereof  he  is 
accused,  then  he  is  not  to  be  sentenced,  as  a  relapsed  heretic,  unless 


387  HISTORIA  PLACITORUM  CORONA. 

he  after  fall  again  into  the  same  heresy,  which  he  so  specially  abjured; 
but  herein  there  is  some  difference  among  the  doctors,  for  some  think 
even  after  a  special  abjuration  of  one  particular  heresy,  if  he  falls  into 
another  heresy,  cense  fur  relapsiis:  vide  Extr.  de  Haereticis,  cap.Ac- 
ciisat.  §  2,  Eum  vero  in  6/0  S,'  Lindwood  de  hvereticis,  cap.  Item 
quia  verbo  sirapliciter  in  glossa :  but  the  ordinary  may  put  this  out 
of  question,  for  it  seems  by  the  canon  law  he  may  at  his  pleasure  in 
cases  of  heresy  requre  a  general  abjuration,  viz.  de  haeresi  generali- 
ter  <5'  simpliciter. 

III.  Now  as  to  the  punishment  itself  of  heresy,  especially  of  those 
that  are  either  contnmaces  ov  relapsi :  1.  By  the  civil  law;  it  is 
true,  that  the  conviction  and  sentencing  of  heretics  is  as  well  thereby, 
as  by  the  canon  law,  left  to  the  ecclesiastical  judge,  so  that  without 
a  declaration  or  sentence  of  the  ecclesiastical  judge  the  civil  jurisdic- 
tion cannot  proceed  to  inflict  any  punishment,  Lindwood  de  hscreti- 
cis,  cap.  Reverendissimge  verb,  contiscata  in  glosse  tho  confiscation 
of  goods  of  the  heretic  followed  upon  his  conviction,  necessaria 
tamen  est  sententia  declarativa  judicis  super  ipsa  confiscatione,  & 
hsec  sententia  fieri  solummodo  debet  per  judicem  ecclesiasticum,  & 
non  per  judicem  saecularem:  vide  in  Glo  de  hxreticis,  cap.. secundam 
leges. 

But  tho  the  decision  and  judicial  sentence  of  heresy  was  belonging 
only  to  the  ecclesiastical  judge,  yet  the  civil  constitutions  of  emperors 
and  princes  did  institute  and  enact  several  penalties,  as  consequential 
upon  such  sentence,  such  as  were  confiscation  of  goods,  disherison  of 
heirs,  and  in  some  cases  death,  as  we  shall  see  hereafter:  quod  vide 
in  Codice,  Lib.  I.  tit.  5.  de  hvcreticis  per  totam. 

As  to  the  penalty  of  death  ultimum  supplicium:  it 
["388  3  ^'lo'-^'^i  seem  the  antient  imperial  constitutions  made  a  dif- 
ference between  heresies  in  relation  to  that  punishment:  it 
appears  by  the  edict  of  Theodosius  Codice,  cap.  4.  the  Manichees 
and  Do7iatists  were  punished  with  death,  and  possibly  so  were  the 
Nestorians,  ibidem  cap.  6.  and  generally  all  heretics,  that  seduced 
the  orthodox  to  rebaptizatioii,  ibid.  cap.  23.  many  other  heretics 
were  under  milder  sentences,  some  were  punished  with  exile,  some 
with  extermination  from  the  city,  some  with  pecuniary  mulcts,  and 
some  with  confiscation,  which,  it  seems,  was  the  most  usual  punish- 
ment: but  it  seems  that  by  the  constitution  of  the  emperor  Frederic, 
(which  yet  is  not  extant)  Hodie  indistincte  illi,  qui  per  judicem  eccle- 
siasticum sunt  damnati  de  haeresi,  quales  sunt  pertinaces  &  relapsi, 
qui  non  petunt  misericordiam  ante  sententiam,  sunt  damnaudi  ad 
mortem  per  sa^culares  potestates,  &  per  eas  debent  comburi  sen  igne 
cremari.  Lindwood  de  hmreiicis,  cap.  Reverendissima;  ve^^b.  pcenas ; 
and  from  this  constitution  of  Frederic  the  course  of  burning  gene- 
rally all  heretics  indistinctly,  if  pertinacious  or  relapsed,  took  its  rise. 

Now  as  to  the  penalties  by  the  canon  law,  it  is  true  they  go  no 
farther  than  ecclesiastical  censiu'es,  injunction  of  penance,  excommu- 
nication, and  deprivation  of  ecclesiastical  benefices;  but  yet  they 
made  bold  by  some  of  their  constitutions  to  proceed  farther,  and 


HISTORIA  PLACITORUM  CORONiE.  388 

indeed  farther  than  they  had  authority;  such  were  among  others 
imprisonment  by  the  ordhiary,  and  confiscation  of  goods,(c)  but 
whether  they  adventured  hereupon  only  in  subservience  to  civil  con- 
stitutions, or  whether  by  their  own  pretended  power,  may  be  doubt- 
ful; but  howsoever,  it  is  so  decreed  in  their  canons  and  constitutions: 
vide  Linchvnod  de  hsereticisy  cap.  Reverendissimse  verb,  confiscata, 
Sf'  ibidem  Item  quia  verb,  sententialiter. 

But  indeed  as  to  the  inflicting  of  death  upon  heretics,  their  canons, 
go  not  so  far  as  that ;  neither  indeed  need  they,  for  emperors  and 
princes  being  induced  by  them  to  enact  such  severe  constitutions, 
they  did  in  effect  the  business  by  sentencing  the  heretic,  and 
then  leaving  him  to  the  secular  power,  so  that  the  secular  f  389  ] 
power  was  only  in  nature  of  their  executioner;  and  altho 
they  direct  in  some  cases  of  treason  an  intercession  to  be  made  to  the 
secular  power  to  spare  the  life  of  the  offender  thus  committed  over 
to  the  secular  power,  Extr.  de  verborum  significatione  cap.  Novi- 
nius,  yet  we  find  no  such  curtesy  for  heretics,  but  the  princes,  that 
do  not  effectually  proceed  according  to  the  utmost  of  their  power  to 
eradicate  them,  are  threatned  with  excommunication,  and  accordingly 
they  are  required  to  take  an  oath  to  perform  it,  Extr.  de  hsereticis, 
cap.  Ad  abolendam.(*) 

Therefore  as  to  the  punishment  of  heretics  with  death,  of  an  here- 
tic so  declared  by  the  bishop,  it  was  left  to  the  secular  power  with 
this  difference,  if  the  person  convicted  were  a  layman,  he  was  imme- 
diately after  his  sentence  to  be  delivered  to  the  secular  power  to  be 
burnt;  but  if  he  were  a  clergyman  within  the  greater  or  lesser 
orders,  he  was  first  solemnly  degraded,  beginning  with  the  chiefest 
order  he  had,  as  that  of  priesthood,  and  so  to  the  lowest,  damnati  per 
ecclesiam  judici  saeculari  relinquentur  animadversione  debita  puni- 
endi,  clericis  a  suis  ordinibus  primo  degradatis.  Extr.  de  hsereticis, 
cap.  excommunicamus:(t)  the  solemnity  whereof  see  at  large  in  Qto 
decretal  de  poenis  cap.  Degradatio,  Fox's  acts  afid  monuments 
part  \. p.  674.  the  degradation  of  William  Saivtre. 

This  degradation  by  the  latter  cannons  might  be  by  one  bishop, 
tho  formerly  it  required  more. 

•When  the  sentence  was  given  by  the  ordinary,  and  the  offender 
thus  left  to  the  secular  power,  he  was  delivered  over  to  the  lay- 
officer,  and  then  a  mandate  or  writ  issued  from  the  chief  magistrate 
to  execute  the  offender  according  to  the  secular  law;  but  of  this 
more  particularly  hereafter, 

I  have  been  the  longer  in  these  particulars,  th^t  we  thereby  may 
observe  these  two  things:  1.  How  miserable  the  servitude  of  chris- 
tians was  under  the  papal  hierarchy,  who  used  50  arbitrary  and  un- 
limited a  power  to  determine  what  they  pleased  to  be  heresy,  and 

(c)  For  in  Ennrland  before  the  statute  of  2  H.  5.  cap.  7.,  neither  lands  nor  goods  were 
forfeited  by  a  conviction  for  heresy.  3  Co,  Instit.  43. 
(*)   Vide  Constit.  Frederici,  §  6. 

(+)  Vide  Lindwood  de  hccreticis,  cap.  Finaliter  verb,  sententiet. 
VOL.  I. — 35 


390  HISTORIA  PLACITORUM  CORONA. 

then  0771721  appeUatione  postposita  subjecting  men's  lives  to  their 
sentence.*  2.  How  finely  they  made  the  secular  power  their  vas- 
sals in  execution  of  this  odious  piece  of  drudgery,  as  it  was  managed 
and  practised  by  them. 

I  come  now  to  a  closer  consideration  of  heresy,  and  its  punish- 
ment according  to  the  usage  received  in  Engla7id,  and  the  laws  re- 
lating thereunto,  according  to  the  method  above  propounded. 

1.  Therefore  how  the  usage  and  law  obtained  concerning  this 
matter  in  England  before  the  time  of  Richa7'd  II. 

As  the  romish  religion  was  generally  received  here  in  E7igland 
in  this  period,  so  the  manner  of  proceeding  touching  heresy  was 
much  according  to  the  papal  decretals  and  constitutions,  whereof  a 
large  account  is  above  given. 

The  jurisdiction,  wherein  heresy  was  proceeded  against,  was  at 
the  common  law  of  two  kinds:  1.  The  convocation  of  a  provincial 
synod.  2.  The  diocesan  or  bishop  of  the  diocese,  where  the  heresy 
was  publi&lied,  and  the  heretic  resided. 

.1.  As  to  the  former  it  is  without  question,  that  in  a  convocation 
of  the  clergy  or  provincial  synod  they  might  and  frequently  did 
here  in  Engla7id  proceed  to  the  sentencing  of  heretics,  and  when 
convicted,  left  them  to  the  secular  power,  whereupon  the  writ  of 
Hssretico  combiire7ido  might  issue,  (thus  it  was  done  in  the  case  of 
the  apostate  Jew,  Bract  de  Corona,  Lib.  \\\,{d)  and  the  case  of 
Sawtre,{e)  2  H.  4.  who  was  convict  in  the  convocation  of  Lo7idon,y 
and  then  the  archbishop,  who  was  prasces  conci/ii,  pronounced  the 
sentence,  degraded  the  offender,  if  in  orders,  and  signified  the  con- 
viction into  chancery,  whereupon  the  writ  de  hxretico  comburendo 
issued. 

2.  As  to  the  power  of  the  bishop  or  diocesan  alone  there  hath 
been  diversity  of  opinions ;  some  have  thought,  that  the  bishop  of 

the  diocese  might  proceed  against  heresy  by  ecclesiastical 
("391  ~\  censures,  but  as  to  the  loss  of  life  the  conviction  ought  to 

be  at  least  in  a  provincial  council,  without  which  the  heretic 
ought  not  to  undergo  death  by  the  writ  de  hairetico  comburendo.^ 
1.  For  that  in  the  case  mentioned  by  Br  acton,  Lib.  III.  de  Corond^ 
the  conviction  of  that  heresy,  or  rather  apostacy,  whereupon  the 
offender  was  burnt,  was  in  the  provincial  council  at  Oxford.  2.  The 
writ  de  hseretico  cornbnrendo  in  the  register,  and  F.  N.  B.  recites 
the  conviction  to  be  in  a  provincial  council,  and  according  to  it  is  the 
opinion  of  Filzherbert,  ibidem  fol.  269.  and  the  statute  of  2  H.  4.' 
(hereafter  mentioned)  giving  ))ower  to  the  ordinary  finally  to  sen- 
tence an  heretic,  so  that  death  should  ensue  thereupon,  was  novx 
jiirisdiclionis   i/i   hac  parte   i7itroductse.     Again   my  lord   Coke, 

(*)  Oodfridus  Coloniensia  anno  1234.  spealjing  of  the  severity  of  the  pope  and  th^ 
emperor  Frederic,  (the  antlior  of  the  constitution  afore-mcntioned  for  buininor  heretics) 
sayn,  Kodem  die,  quo  quid  uocnsatus  est  sou  juste,  scu  injustd,  niillius  appcllationi.s,  nul- 
tius  dcfcnsionis  relujrio  proficientc,  damnalur,  &  llaiiunas  crudclitcr  iiijicitur.  See 
also  Mat.  Paris,  p.  4-2[). 

{d)   Lib.  III.  cap.  0.  fol.  124.0. 

(e)  State  Tr.  Vol.  VL  Append,  p.  2.  Foz's  Acts  and  Mon.  Vol.  I.  p.  586.  Rymer's  Fad. 
Vol.  Vni.p.  178. 


HISTORIA  PLACITORUM  CORONA.  391 

12  Jiep.  p.  56,  57.  recites  this  to  be  the  opinion  of  all  the  judges  in 
2  Mar.  and  ii}  effect  agreed  unto  43  Eliz.  by  Sir  John  Popham,  and 
others,  5  Rep.  Cawdrie's  case,  p.  23.  a.  accordant^  and  Brooke 
seems  to  accord.  1  Mar.  Br.  Heresy. 

On  the  other  side  others  have  holden,  that  the  diocesan  alone  by 
the  canon  law  might  convict  of  heresy,  and  that  thereupon  this 
writ  may  be  issued:  1.  This  is  consonant  to  the  old  decretals,  and 
likewise  to  the  provincial  constitutions  of  Arundel,  Courtney  and 
Others,  that  the  diocesan  alone  without  the  assistance  of  a  provincial 
council  might  convict  of  heresy,  and  deliver  over  the  offender  to  the 
secular  power.  2.  Again,  the  statute  of  2  H.  4.  cap.  15.  recites  and 
admits  the  power  of  the  diocesan  in  this  case,  but  that  by  reason  of 
the  offender's  going  from  diocese  to  diocese,  and  refusing  to  appear 
before  the  ordinary,  he  was  interrupted  in  his  proceeding,  and  there- 
upon the  statute  gives  farther  remedy.  3.  That  accordingly  it  was 
practised  in  the  time  of  queen  Elizabeth,  when  all  former  statutes 
concerning  heresy  were  repealed,  and  the  case  stood  as  it  was  at 
common  law,  4.  That  it  was  accordingly  resolved  by  Fleming, 
Ttmfield,  Williams  and  Crake,  in  9  Jac.,(f)  when  Legate  wa.s 
burnt  for  heresy;  arid  accordingly  my  lord  Coke,  P.  C. 
cap.  5.  p.  40.  seems  to  be  of  the  same  opinion, (^)  and  so  f  392  ] 
seems  to  retract  what  he  had  before  delivered  in  his  12th 
report. 

This  business  will  be  further  considered  in  the  sequel  of  this  chap- 
ter, for  the  present  I  shall  only  say  thus  much. 

1.  That  the  diocesan,  as  to  ecclesiastical  censures,  may  doubtless 
proceed  to  sentence  heresy. 

2.  I  think  that  at  common  law,  and  so  at  this  day,  (all  former 
statutes  being  now  repealed  by  1  Eliz.  cap.  1.)  if  the  diocesan  con- 
victs a  man  of  heresy,  and  either  upon  his  refusal  to  abjure,  or  upon 
a  relapse  decree  him  to  be  delivered  over  to  the  secular  power,  and 
this  be  signified  under  the  seal  of  the  ordinary  into  the  chancery, 
the  king  might  thereupon  by  special  warrant  command  a  writ  de 
hasretico  cornhurendo^h)  to  issue,  tho  this  were  a  matter  that  lay  in 
his  discretion  to  grant,  suspend,  or  refuse,  as  the  case  might  be  cir- 
cumstantiated. 

And  what  is  here  said  of  the  diocesan  or  bishop  of  the  diocese  is 

(/)  12  Co.  Rpp.  92. 
.  ig)  Lord  Cuke  does  not  intimate  as  if  he  was  of  this  opinion,  or  had  retracted  what  . 
hahad  (said  in  his  12th  report,  and  had  been  solemnly  resolved  in  Cawdrie^s  case;)  he 
says  indeed,  that  from  the  statute  of  2  H.  4.  may  be  gathered  this  conclusion,  that  the 
diocesan  hath  jurisdiction  of  heresy,  and  accordingly  it  was  resolved  in  Legate's  case, 
aind^  that  upon  a  conviction  before  the  ordinary  of  heresy,  the  writ  de  hcsretico  com- 
burendo  doth  lie;  this  he  mentions  as  also  resolved  in  Legate''s  case,  as  in  truth  it  was; 
but  to  this  last  resolution  he  doth  not  declare  any  assent,  for  it  is  the  first  only,  which  he 
says  may  be  gathered  from  the  act  of  2  H.  4. 

(A)  Whether  this  writ  lay  at  common  law,  or  was  introduced  by  the  clergy  about  the 
time  of  Henry  IV.  hath  been  made  matter  of  question:  see  State  Tr.  Vol.  II.  p.  275.  if 
the  common  law  gave  such  a  writ;  it  will  be  difficult  to  reconcile  it  with  what  our  au- 
thor says  a  little  below,  that  the  usual  penalty  was  confiscation  and  banishment,  and  that 
5  R.2.  was  the  first  temporal  law  against  heresy,  which  yet  went  not  so  high  as  death, 
but  only  to  imprisonment  and  ecclesiastical  censure. 


392  HISTORIA  PLACITORUM  CORONA. 

true  als6  of  the  guardiaji  of  the  spiritualities  sede  vacanfk,  bilt  'till 
the  statute  of  2  H.  4.  the  vicar  general,  commissary,  or  official  of  the 
diocesan  had  no  cognizance,  unless  by  special  commission  as  an  inr 
quisitor  from  the  pope;  and  Lindwood  gives  the  reason  de  hxreticis 
cap.  Item  quia  turpis  verb,  ordinarii  in  glossd,  Est  enirn  causa 
hsej'esis  una  de  majoribus  caitsis,  qiix  pertinent  ad  solos  episcopos; 
but  the  statutes  of  2  H.  A.  cap.  15.  2  H.  5.  c(ip.  7.  while  they  were  in 
force,  gave  the  cognizance  of  heresy,  as  well  to  the  bishop's  commis- 
sary, as  the  bishop.  .       , 

3.  But  yet  I  never  find  before  the  time  of  Etchard  II. 
r  393  3  that  any  man  was  put  to  death  upon  a  bare  conviction  of 
heresy,  tho  after  a  relapse,  unless  he  were  sentenced  in  a 
provincial  council:  and  the  reason  seems  to  me  to  be  this,  when  the 
offender  was  convicted  of  heresy  either  thro  pertinacity,  or  after  a 
relapse,  and  so  delivered  over  to  the  secular  power,  the  ecclesiastical 
judge  had  done  his  business,  and  the  rest  that  follows  was  to  be  the 
act  of  the  temporal  or  civil  power,  who  were  never  obliged  nor 
thought  themselves  obliged  here  in  England  to  take  away  the  life  of 
a  person  upon  so  slender  an  account,  as  the  judgment  of  a  single 
bishop, (i)  nor  indeed,  unless  it  were  a  sentence  by  the  weighty  body 
of  a  provincial  council:  vide  Bracton,  nbi  supra. 

For  as  this  kingdom  was  never  obliged  by  the  canons  or  decretals 
of  popes  or  of  provincial  councils,  further,  than  they  were  admitted, 
so  neither  were  they  bound  by  the  imperial  constitutions  of  the  em- 
peror Frederic  or  others,  who  by  their  edicts  inflict  death  upon  all 
persons  censured  by  the  diocesan  to  be  relapsed  or  contumacious 
heretics;  but  herein  they  did' as  the  laws  and  usages  of  the  kingdom, 
and  their  own  prudence,  and  the  circumstances  of  the  case  required 
or  directed. 

But  yet  I  take  it,  that  the  conviction  before  the  diocesan  alone 
was  a  good  conviction,  and  the  party  might  thereupon  be  left  to  the 
secular  power,  and  so  burnt  by  a  writ  de  hxretico  comburendo,\{ 
the  king  and  his  council  thought  fit,  tho  de  facto  it  was  not  at  all,  or 
at  least  not  usually  so  done,  till  the  time  of  Henry  IV.  unless  the 
conviction  and  sentence  were  in  a  provincial  council,  for  the  reason 
before  given. 

Fitzherbert  therefore  was  herein  mistaken,  and  also  when  he  saith, 
it  was  to  issue  only  in  case  of  relapse;  for  a  relapse  could  not  be  with- 
out conviction,  and  if  the  party  were  thereby  convicted  of  the  heresy, 
whereof  he  was  accused,  and  persisted  in  it  'till  after  sentence,  and 
refused  to  abjure,  such  a  contu77iax  or  pertinax  hvereticiis  might  be 
proceeded  against  as  a  relapsed  heretic,  and  a  writ  de  hseretico  com- 
burendo  might  thereupon  issue,  as  it  seems,  for  the  writ  in 
r394  3  the  register  being  formed  upon  a  relapsed  heretic,  pursues 
the  case  as  it  finds  it,  but  is  not  exclusive  of  the  other  case 
of  a  contumacious  heretic,  that  persists  therein  before  and  after  the 
sentence;  de  quo  vide  supra;  vide  accordant  1  Mar.  Br.  Heresy,  I. 
and  25  H.  8.  cap.  14. 

(i)  12  Co,  Rep.  56. 


HISTORIA  PLACITORUM  CORON.E.  394 

Touching  the  penalty  of  convicts  of  heresy  here  in  England,!  find 
very  rarely  death  inflicted;  before  the  reign  oi  Richard  II.  the  usual 
penalty  was  confiscation,  and  seizure  of  goods;  quod  vide  C/aus.  20. 
H.  3. 7n.  1 1,  dors,  touching  Ernald  de  Peregard,  who  was  convict  of 
heresy,  and  his  goods  seized  to  the  king's  use  ;  the  hke,  Clans.  26  H. 
3.  in.  15.  pro  Stephana  Peliter,  and  as  to  corporal  punishment  of 
such  convicts,  it  was  usually  in  antient  time  banishment  and  stigma- 
tizing, as  appears  by  Ralph  de  Diceto,  sub  anno  11 60.  in  the  time  of 
Henry  II.  and  Brampton  H.  2.  suh  anno  1159.,(*)  but  their  convic- 
tion was  in  a  provincial  council  held  at  Oxon  prsesente  rege,  <§•  prx" 
sentibus  episcopis. 

But  quo  jure  the  forfeiture  of  goods  was  then  practised,  is  consid- 
erable: vide  Co.  P.  C.  cap.  5.  the  forfeiture  of  goods  was  introduced 
by  2  H.  5.  and  that  statute  being  repealed,  ceaseth. 

And  in  the  first  temporal  law,  or  pretended  law(^)  made  against 
such  oflenders,  viz.  5  R.  2.  cap.  5.  where,  upon  certificate  by  the 
prelates  into  the  chancery,  commissions  shall  issue  to  the  sheriffs  to 
apprehend  and  imprison  the  offender,  it  is  only  until  they  will  justify 
themselves  according  to  the  law  and  reason  of  holy  church,  so  that  it 
seems  the  punishment  did  not  hitherto  de  facto  exceed  imprisonment 
and  ecclesiastical  censures ;  and  yet  it  seems  that  Swinderly  and 
others  in  the  time  of  Richard  II.  before  the  statute  of  2  H.  4.  were 
ordered  to  be  executed  for  heresy:  vide  Fox  part  I.  p.  5S0,  618.  but 
none  by  name  appear  to  be  executed,  ibidem  p.  659.  but  of  this  here- 
after, (t) 

As  touching  the  writ  de  hseretico  cofnbiirendo  it  was  no  writ 
of  course,  nor  issued  by  the  chancellor,  but  by  special  war-  [[  395  ^ 
rant  from  the  king  upon  the  certificate  of  the  conviction  and 
sentence  made  to  the  king  under  the  seal  of  the  archbishop,  if  it  were 
in  a  provincial  council. 

And  thus  far  what  I  find  concerning  heresy  at  common  law  before, 
the  lime  of  Richard  II. 

II.  As  to  the  times  of  Richard  II.  Henry  IV.  Henry  V.  and  so  to 
25  Henry  VIII. 

The  first  temporal  law,  or  pretended  law  against  heretics  in  this 
kingdom,  was  5  R.  2.  cap.  5.  which  did  not  go  so  high  as  death,  but 
only  to  imprisonment  and  ecclesiastical  censure,  as  appears  by  the 
printed  statute;  but  this  was  in  truth  no  act  of  parliament,  for  the 
commons  never  assented;  and  accordingly  Rot.  Pari.  6  R.  2.  n.  52. 
the  same  is  declared  by  the  king  and  parliament,  which  it  is  true, 

i;    *  See  also  Mat.  Paris,  p.  1 05. 

.  (k)  Our  author  here  calls  it  a  pretended  law,  and  lord  Colie  calls  it  a  supposed  act, 
because  the  commons  never  consented  to  it,  for  which  reason  in  the  next  sest^ion  of  par- 
liament  it  was  annuld,  altho  by  the  prelates  means  it  hath  been  continually  printed,  and 
the  act,  which  annuld  the  same,  hath  been  from  time  to  time  kept  from  the  print.  12  Co, 
Rep.  p.  57. 

(t)  It  does  not  appear,  that  any  were  ordered  to  be  executed  for  heresy  in  this  reign, 
and  as  to  Swinderby,  Mr.  Fox  says,  he  was  declared  an  heretic,  but  suffered  no  great 
harxn  during  the  lite  of  king  Richard  II.  and  if  he  was  burnt,  it  was  not  till  after  the 
statute  of  2  H.  4.     See  Fox's  Acts  and  Mon.  p.  620. 


395  HISTORIA  PLACITORUM  CORONyE. 

was  never  printed  among  the  statutes,  but  is  at  large  recited  by  Mr. 
Fox, part  \.p,  576.  and  therefore  we  find  no  other  punishment  du- 
ring this  king's  time,  but  imprisonmentand  ecclesiastical  censures. 

But  in  the  time  of  Henry  IV.  the  power  of  the  diocesan  was  en- 
\diX2.Qdi,  viz.  by  the  statute  of  2  H.  4.  cap.  \5.{l.)  viz.  the  diocesan 
hath  power  given  him  to  arrest  and  imprison  persons  suspect  of  he- 
resy, till  purgation  or  abjuration,  and  hath  also  power  to  fine  and 
imprison  persons  for  those  offenses,  and  estreat  the  fines;  and  if  a 
person  be  convict  of  heresy  before  the  diocesan  and  his  commissaries, 
and  do  refuse  to  abjure,  or  having  abjured  fall  into  relapse,  so  that 
according  to  the  canons  he  ought  to  be  left  to  the  secular  court, 
whereupon  credence  shall  be  given  to  the  diocesan  or  his  commissa- 
ries, then  the  sheriff' of  the  same  county  shall  be  personally  present 
at  the  preferring  of  the  same  sentence,  when  required  by  the  diocesan, 
and  shall  receive  the  person  sentenced,  and  cause  him  before  the 
people  in  an  high  place  to  be  burnt. 

This  statute  gave  in  effect  the  whole  power  to  the  dioce- 
[^  396  ]  san,  and  upon  this  account  William  Saivtre{rn)  after  sen- 
tence and  degradation  in  the  provincial  synod  of  London 
was  burnt  in  the  beginning  of  Henry  IV. 's  usurpation;  the  whole 
process  and  history  of  whereof  is  delivered  by  Mr.  Fox  in  his  acts 
and  monuments,  part  1.  p.  674,  675.  and  yet  it  is  observable,  this- 
was  not  done  barely  by  the  order  of  the  diocesan,(n)  but  a  special 
writ  de  hseretica  comburendo  issued  to  the  mayor  and  sheriffs  of 
London  to  perform  the  same,  which  writ  is  there  mentioned  verba- 
tim, and  is  the  very  same,  which  is  recited  by  F.  N.  B./ol.269.  and 
was  the  warrant  for  the  burning  of  William  Sawtre. 

Now  touching  this  matter  we  are  to  observe,  that  the  parliament 
of  2.  H.  4.  began  the  20th  diViy  o{  January  in  octabis  Hilarii,  it  con- 
tinued till  the  10th  of  March  following,  JVilliam  Sawtre,  having  the 
year  before  been  convicted  for  heresy  before  the  bishop  of  Norwich, 
was  upon  the  22d  and  24th  of  Febr.  2  H.  4.  (which  was  sitting  the 
parliament)  in  the  provincial  comicil  held  in  St.  PauPs,  London,  con- 
victed  and  sentenced,  as  a  relapsed  heretic,  and  an  heretic  to  be  pu- 
nished; this  was  done  in  the  provincial  council  before  Thomas  Jirun- 
clel,  archbishop  of  Canterbury,  as  appears  by  the  acts  of  the  registry 
of  Canterbury  collected  by  Mr.  Fox, part  I.  p.  673,  674,  675.  upon 
the  26th  of  Febr.  the  writ  de  hseretico  comburendo  was  formed  and 

(I)  This  statute  was  afterwards  repeal'd  by  25  //.  8.  cap.  14. 

(m)  He  was  a  parisli-pricst,  first  of  St.  Margaret  oi  Lynn  in  the  county  of  Noi'fulk,  and 
afterwards  of  St.  Sythc's  churcli  in  Sythe-lane,  London,  and  was  the  first,  who  appears  to 
have  been  executed  for  formal  heresy  in  England.  " 

(n)  Nor  could  it  be  so  done,  because  lie  was  not  sentenced  by  virtue  of  the  act  of  H.  4. 
which  extended  only  to  eonvietions  before  the  diocesan  or  iiis  commissary,  wliereasiStfJO- 
tre  was  convicted  before  the  convocation;  and  even  on  a  conviction  before  the  diocesan 
the  sheriff"  had  no  power  to  burn  the  party  convict  without  a  writ,  unless  he  was  preseat 
at  the  pronounciiijj  the  sentence,  see  Slate  Tr.  Vol.  VI.  Append,  p.  I.  besides,  as  our 
author  observes  helow,  this  act  did  not  pass  till  after  Sawtre  was  sentenced,  so  that  how 
it  can  be  said,  that  it  was  upon  account  of  this  act  that  Sawtre  was  burnt,  1  know  not, 
except  it  be  with  regard  to  the  cncourojreunent  the  elerpy  might  take  from  the  prospect 
of  its  passing  for  anticipating  the  exercise  of  such  a  cruel  (tlio  to  them  desirable)  powet. 


HISTORIA,  PLACITORUM  CORONA.  396 

made  by  the  advice  of  the  lords  temporal  in  parliament,  which  writ 
bears  teste  26  Fcbj\  2  H.  4.  "per  ipsinn  rc^em  Sc  consilium  in  par- 
liament o,?i\\(l  isetnered.verbatijn  in  the  parliament-roll  2  H. 
4.  n.  29.  and  is  the  very  same  with  that  in  Filzh.  N.  R.   [397] 
before-mentioned,  and  agrees  verhalim  ysi\\\\  it;  and  upon 
this  writ  Saivtre  was  burnt,  being  first  solemnly  degraded. 

This  conviction,  sentence,  and  writ,  iho  after  the  commencement 
of  the  the  parliament,  was  before  the  end  of  that  parliament,  and  con- 
sequently before  the  statute  of  2  H.  4,  cap.  15.  passed,  which  passed 
not  till  the  last  day  of  the  parliament,  viz.  10  Martii;  so  that  at  that 
time  the  offender  could  not  be  executed  but  by  a  writ  de  hxretico 
comburendo,  for  the  diocesan  had  not  power  by  his  own  immediate 
warrant  to  command  execution,  till  that  passed,  which  passed  not, 
till  after  the  definitive  sentence. 

In  this  parliament  there  was  a  petition  of  the  clergy  against  here- 
tics which  was  the  foundation  of  the  statute  of  2  H.  4.  cap.  15.  and 
was  granted  by  the  king  de  consensu  magnatnm  S,'  aliorum  proce- 
rum  regni  in  prsesenti  parliamento  existentium,  with  some  addi- 
tional clauses,  which  were  also  drawn  up  into  the  act  of  2  H.  4. 
cap.  15.  but  in  that  answer  no  consent  of  the  commons  appears,  and 
yet  the  act  was  drawn  up,  and  proclaimed,  and,  as  it  is  now  printed, 
is  recited  to  be  at  the  petition  of  the  prelates,  clergy  and  commons  of 
the  realm  in  parliament,  and  the  enacting  clause  is  by  the  king  by 
the  assent  of  the  states  and  other  discreet  men  of  the  realm  being  in 
the  said  parliament:  this  is  observed  by  Mr.  Fox  in  h\s  Jlcts  and 
Monuments,  part  1.  p.  773.  whereupon  he  concludes,  that  this  was 
no  act  of  parliament,  but  an  act  of  the  king  and  clergy  like  that  of 
5  B.  2.  before-mentioned,  which  was  declared  void,  because  the  com- 
mons never  assented,  as  is  before  observed. 

But  the  truth  is,  the  commons  did  assent  to  this  act,  tho  their  assent 
be  not  expressed  in  the  parliament-roll  as  it  is  entered,  as  appears  in 
the  speech  of  the  speaker  of  the  commons  to  the  king  the  last  day  of 
the  parliament,  Rot.  Part.  2  H.  4.  n.  47.  where  they  thank  the  king 
for  the  remedy  he  had  ordained  in  destruction  of  the  heretical  doc- 
trine of  the  sects;  and  besides  in  the  same  parliament-roll,  n.  81. 
"  Inter  petitiones  communitatis,  Item  prient  les  communes,  qe  quant, 
ascun  home  ou  feme,  de  qel  estate  ou  condition  qil  soit,  soit 
prise  &  imprisone  per  LoUardie,  qe  maintenant  soit  mesn  [  398  ] 
en  respons,  et  eit  tiel  judgement,  come  il  ad  deservy  en  ex- 
ample dauires  de  tiel  male  sect  per  ligierment  cesser  lour  malveys 
predications,  &  lour  tenir  al  a  foy  christian.     Ro'.  le  Roy  le  voet. 

It  is  true  this  was  never  drawn  up  into  a  distinct  act,  for  the  pro- 
vision by  the  statute  of  2  H.  4.  cap.  15.  had  a  full  and  effectual  pro- 
vision for  it;  but  this  petition  of  the  commons  with  the  king's  assent 
was  the  principal  basis,  upon  which  the  statute  of  2  H.  4.  cop.  15. 
was  built,  and  the  statute  was  drawn  up  upon  both  petitions,  as  well 
that  of  the  commons,  as  that  of  the  clergy  both  put  together,  as  was 
usual  in  those  times,  and  so  warrants  the  recital  of  the  preamble  of 
the  printed  statute  of  2  H.  4.  of  the  petition  both  of  the  clergy  and 


398  HISTORIA  PLACITORUM  CORONA. 

commons,(*)  and  every  man  knows,  that  in  the  time  of  Henry  IT. 
and  afterwards  tlie  true  j3rofessors  of  the' christian  rehgion,  (that  yei 
for  the  same  were  sentenced  as  heretics,)  came  under  the  reproachful 
title  of  Lollards. 

This  act  of  2  H.  4.  doth  hot  determine  what  is  heresy  or  what  not, 
but  leaves  it  to  the  decision  of  the  diocesan,  which  wild  and  un- 
bounded jurisdiction  they  had  and  used,  till  25  H.  8.  this  therefore 
was  their  power  at  common  law,  and  the  temporal  judge  or  power 
was  to  give  credence  herein  to  their  sentence,  but  yet  the  consequeuce 
thereof  being  but  to  be  left  to  the  secular  power,  the  secular  power 
might  exercise  his  own  discretion,  and  grant  a  writ  dehwretico  com- 
burendo,i{  he  were  satisfied  of  the  justice  of  the  sentence,  or  forbear 
the  granting  it,  if  he  were  not  satisfied,  that  the  thing  charged  was  a 
real  heresy,  or  that  the  ecclesiastical  judge  had  proceeded  fairly  in 
the  case.t 

But  there  were  some  points  of  power  introduced  by  this 
[  399  ]  act,  and  given  to  the  diocesan,  which  he  had  not  at  the 
common  law,  viz. 

1.  Power  to  arrest  and  imprison  persons  suspect  of  heresy,  for 
altho  the  pope's  decretals  had  before  this  pretended  to  give  power 
of  imprisonment  to  the  diocesan,  Extr.  de psenis,  cap.  3.  in.  6to,  yet 
that  power  never  obtaind  in  England,  till  this  act  of  2  H.  4. 

2.  Power  to  set  and  estreat  fines  upon  the  offender. 

3.  Power  to  deliver  over  immediately  to  the  temporal  officer  a 
relapsed  or  contumacious  heretic  to  be  burnt  without  expecting  the 
king's  writ  de  hperetico  comhurendo,  with  this  notable  advantageous 
clause  whereupon  credence  shall  be  given  to  the  diocesan  or  his 
commissary. 

And  accordingly  the  bishops  after  this  act  put  the  same  in  ure  hy 
their  own  immediate  warrant  or  order  delivering  the  party  to  the 
sheriff  to  be  executed;  but  yet  the  conclusion  of  their  sentence  ran 
most  commonly  as  formerly,  viz.  appointing  him  to  be  left  to  the 
secular  power,  and  so  leaves  him,  but  sometimes,  as  in  the  definitive 
sentence  against  the  lord  Cobham,  Fox,  part  1.  p.  734.  committing 
him  from  henceforth  to  the  secular  power,  and  judgment  to  do  him 
thereupon  to  death. 

Now  it  is  true,  that  upon  the  sentence  of  the  diocesan  the'  sheriff 
or  officer,  or  any  other  were  not  to  dispute,  whether  the  same  were 
truly  heresy  or  not.     1.  Because  it  was  an  act  within  their  cogni- 

(*)  This  petition  of  tlie  commons  amounts  to  no  more,  than  that  the  Lollards  should 
be  cald  to  an  account  and  punished  according  to  their  deserts,  but  contains  nothing  in 
it,  w.Licii  can  be  a  warrant  lor  such  severe  penalties,  as  are  provided  by  that  act,  these 
proceeded  from  the  petition  of  the  clergy. 

(t)  But  by  tije  pa[)al  constitutions  this  liberty  is  not  allowed  to  the  secular  power,  for 
by  those  constitutions  it  is  provided.  That  the  punishment  of  heretics  must  not  be  relaxed 
or  delayed.  Consiil.  Inmc.  IV.  caj>.  24  and  32.  Clem.  IV.  Constit.  XIII.  and  "That  all 
magistrates  under  the  penally  of  excommunication  must  execute  the  penalties  by  the  ' 
inquisitors  imposed  on  her(;ties  without  revising  the  justice  of  them,  for  heresy  is  a  crime 
merely  ecclesiastical."     Connlil.X.  Bull.  Rom.  Tom.  1.^.453. 


HISTORIA  PLACITORUM  CORONA.  399 

zance  and  jurisdiction.     2.  Because  it  is  by  2  H.  4.  enacted,  that 
credence  herein  shall  be  given  to  the  diocesan  or  his  commissary. 

But  yet  as  to  the  first  point  of  the  statute,  the  imprisoning  of  per- 
sons suspect  of  heresy,  the  temporal  judge  had  cognizance  and  power 
to  determine,  whether  fhai  for  which  the  party  was  imprisoned  by 
the  diocesan  were  heresy  or  not;  and  if  it  appeared  to  the  temporal 
judge  not  to  be  heresy,  tho  the  diocesan  had  certified  it  to  be  heresy, 
the  temporal  judge  might  deliver  the  party  imprisoned  upon  an 
Habeas  Corpus,  as  was  done  M.  5  E.  4.  Rot.  143.  B.  R.  in  Key- 
ser^s  case.(o)  and  the  party  detaining  him  is  punishable  in 
an  action  of  false  imprisonment,  as  was  done  in  Warner^s  [  400  ] 
case,(/;)  M.  \\  H.  7.  Rot.  327.  both  which  cases  are  at 
large  reported,  Co.  P.  C.  cap.  5.  p.  42.  and  therefore  in  cases  of  such 
return  upon  an  Habeas  Corpus,  or  justification  by  this  act  in  false 
imprisonment,  the  particular  heresy  must  be  set  forth,  what  it  is, 
that  the  temporal  judge  may  judge,  whether  it  be  heresy  or  no. 

By  this  statute  it  appears,  1.  That  the  ditjcesan  might  convict  of 
heresy,  and  thereupon  the  party  convict  be  left  to  the  secular  power, 
which  settles  the  doubt  raised  by  Fitzh.  N.  B.  269.  2.  That  he 
might  convict  an  heretic,  so  as  to  subject  him  to  the  punishment  of 
death  not  only  in  case  of  relapse  after  abjuration,  but  also  in  case  of 
refusal  to  abjure.  3.  The  power  of  convicting  an  heretic  is  not 
limited  to  the  diocesan  only,  but  also  to  his  commissary  in  order  to 
his  execution  by  the  secular  power. 

After  this  ensued  the  statute  of  2  H.  5.  cap.  7.  against  heretics  and 
LoJ/ards,  and  thereby  it  is  enacted. 

1.  "  That  all  temporal  officers  be  sworn  to  destroy  all  heresies  and 
errors,  commonly  called  Lollardy,  and  tliat  they  be  assisting  to  the 
ordinary,  when  required,  at  the  ordinary's  charge. 

2.  "That  when  persons  are  convict  of  heresy,  and  left  to  the 
secular  power  by  the  ordinaries  or  their  commissaries,  their  lands  in 
fee-simple  shall  after  their  death  be  forfeit  to  the  king  or  lords,  of 
whom  they  are  held,  others  than  the  ordinaries  and  commissaries 
themselves,  and  all  their  goods. 

3.  "  That  the  justices  of  the  king's  bench,  of  the  peace,  and 
assize,  shall  have  power  to  inquire  of  such  errors  and  heresies  called 
Lollardy,  and  their  abetters,  iyc.  and  make  out  process  of  Capias 
against  them. 

4.  "  That  such  Lollards  and  their  indictments  be  de- 
hvered  over  by  indenture  to  the  ordinaries  or  their  commis-  [  401  ] 
saries,  who  thereupon  are  to  proceed  to  their  acquittal  or 
conviction,  but  the  indictment  to  be  only  as  an  information,  not  as 
evidence  against  the  oflender,  but  the  ordinaries  to  commence  their 
process  against  them,  as  if  there  were  no  indictriient. 

(0)  Keijser^s  heresy  was,  that  being-   excommunicated   by  the   archbishop  of  Canter, 
vry;  he  said,  that  notwithstanding  that,  he  wns  riot  excommunicated  before  God,  for  his 
corn  yielded  as  well,  as  any  of  his  neighbuurs,  10.  H.  7.  17. 

(p)  Warner's  licrcsy  was,  that  he  said  he  was  not  bound  to  pay  tithes  to  the  curate  of 
the  parish,  where  he  dwelt.  1  Rol.  Rep.  110.  3  Co.  Inst.  42. 


401  HISTORIA  PLACITORUM  CORONiE. 

5.  "  Piinisbtnent  for  escapes  is  by  forfeiture  of  goods  and  seizure 
of  lauds  till  he  returns;"  and  some  other  provisions. 

This  is  the  first  law,  that  gave  forfeiture  of  lands  in  fee-simple  of 
an  heretic  convict,  and  executed,  and  the  first  law,  that  settled  the 
forfeiture  of  their  goods,  tho  forfeiture  of  goods  were  de  facto  used 
before. (9') 

Tlio  in  some  respects  it  enlarged  the  ordinary's  power,  yet  it  may 
seem  some  kind  of  curb  upon  tliem  to  have  an  indictment  previous, 
yet  I  find  them  not  restrained  from  proceeding,  tho  there  were  no 
such  previous  indictment. 

Hitherto  there  was  no  limitation  or  restraint,  what  should  be  or 
what  should  not  be  heresy,  whereupon  death  might  be  inflicted,  but 
the  ordinary's  power  was  left  arbitrary  and  unlimited  therein. 

By  the  statute  of  25  H.  8.  cap.  14.  there  was  a  great  alteration 
made  as  to  the  point  of  heresy. 

1.  The  ordinaries  were  not  to  proceed  against  any  for  heresy  with- 
out presentment  or  indictment  thereof  before  the  king's  justices,  or 
an  accusation  by  two  lawful  witnesses  at  the  least,  and  that  before 
any  citation  or  process  by  the  ordinary. 

2.  That  persons  convict  by  the  ordinary  of  heresy,  and  refusing 
to  abjure,  or  having  abjured  relapsing,  shall  be  burnt  by  the  king's 
writ  de  hserctico  comburendo  first  had  and  obtained  for  the  same. 

3.  Tho  it  do  not  positively  limit  what  only  shall  be  heresy,  yet  it 
enacts  what  shall  not  be  accounted  heresy.  1.  Speaking  against  the 
authority  of  the  pope.  2.  Speaking  against  spiritual  laws  made  by 
the  authority  of  the  see  of  Rome  repugnant  to  the  laws  of  this  realm, 

or  the  king's  prerogative,  and  indeed  it  was  time  to  make 
|]  402  j  this  provision,  the  papal  authority  being  now  in  a  great 
measure  taken  away  by  act  of  parliament. 

4.  Persons  accused  of  heresy  shall  and  may  be  letten  to  bail  either 
by  the  ordinary,  or  in  their  default  by  two  justices  of  the  peace. 

IV.  By  the  statute  of  31  ^.  S.  cap.  14.  a  farther  alteration  was 
made  touching  heresy. 

1.  Six  articles  are  "declared  and  enacted,  1.  That  in  the  sacrament 
of  the  altar  after  consecration  there  remains  no  substance  of  bread 
and  wine,  but  the  substance  of  Christ. 

2.  That  communion  in  both  kinds  is  not  necessary  ad  salutem. 

3.  That  priests  may  not  marry  by  tlie  law  of  God.  4.  That  vows 
of  chastity  ought  to  be  kept  by  the  law  of  God.  5.  That  private 
mass  is  necessary  to  be  continued.  6.  That  auricular  confession  is 
necessary  to  be  retained  and  used. 

2.  That  to  preach  or  to  declare,  or  hold  opinion  against  the  first 
article  touching  transubstantiation  shall  be  adjudged  heresy,  and  the 
persons  convict  thereof,  their  aiders,  ^-c.  convicted  thereof  in  the  form 
underwritten  shall  be  adjudged  heretics,  and  suffer  death  by  burning 
without  any  benefit  of  abjuration,  sanctuary,  or  clergy,  and  shall  for-, 
feit  his  lands  to  the  king,  as  in  case  of  high  treason. 

{(I)  Co.  P.  C.  43. 


HISTORIA  PLACITORUM  CORONA.  402 

3.  That  if  any  openly  preach  against  the  last  five  articles,  and 
be  thereof  convict  or  attaint  by  the  laws  nnderwritten,  every  such 
offender  shall  suffer  death  as  a  felon  without  benefit  of  clergy  or  sanc- 
tuary. 

4,' That  if  any  person  publish  or  declare  his  opinion  against  the 
five  articles  last  mentioned,  he  shall  for  the  first  offense  forfeit  his 
goods,  the  profits  of  iiis  lands  during  his  life,  and  ecclesiastical  pro- 
motions, and  he  imprisoned  at  the  king's  will,  and  upon  the  second 
conviction  shall  suffer  as  a  felon  without  benefit  of  clergy. 

5.  The  king  is  empowered  to  issue  commissions  directed  to  the 
archbishop  or  bishop  of  the  diocese,  and  the  chancellor  and  others, 
or  three  of  them,  whereof  the  archbishop  or  bishop,  or  chancellor  to 
be  one,  to  take  information  by  oath  of  twelve  men,  or  the  testimony 
of  two  lawful  persons  of  all  heresies,  Sf'C. 

6.  The  ordinaries  within  their  several  jurisdictions  to  take 
information  of  heresies,  and  justices  of  peace,  4'C.  to  take  [403] 
inquisitions  touching  heresies;  these  informations  and  inqui- 
sitions to  be  certified  to  the  commissioners  above-mentioned. 

7.  The  commissioners  or  any  three  of  them  to  make  process 
against  the  offenders  into  all  the  shires  of  England  and  ^^ales,  as  in 
case  of  felony,  and  upon  their  appearance  shall  have  full  power  and 
authority  to  hear  and  determine  the  said  offenses  according  the  laws 
of  this  realm  and  this  statute. 

8.  Commissioners  or  two  of  them  have  power  to  bail  persons,  ac- 
cused, till  trial. 

9.  No  challenge  to  be  admitted  but  for  malice  or  enmity,  trial  of 
foreign  pleas  by  the  commissioners,  no  eschetes  to  the  lords,  with 
some  other  clauses. 

This  act,  tho  it  doth  not,  in  express  terms,  repeal  the  statute  of 
2  H.  5.  yet  it  doth,  in  a  great  measure,  alter  it.  1.  In  point  of  juris- 
diction; for,  here  the  proceeding  to  judgment  is  to  be  by  commis- 
sioners under  the  great  seal,  and  not  by  the  ordinary  or  ecclesiastical 
jurisdiction.  2.  The  offense  of  heresy  now  in  a  great  measure  is 
made  a  secular  offense,  especially  in  the  five  last  articles  which  are 
made  felony.  3.  Tho  the  commissioners  have  power  to  proceed 
upon  accusations,  as  well  as  indictment,  yet  the  trial  of  the  offender 
was  to  be  by  jury,  and  the  words  hear  and  determine,  &;c.  import 
the  same. 

Thus  the  law  stood  until  1  E.  &.  with  some  small  variations  in 
34  <§•  35  H.  8.  cap.  1.  but  by  the  statute  of  1  E.  6,  cap.  12.  all  the 
before-mentioned  statutes,  viz.  5  li.  2.  2  H.  4.  2  H.  5.  25  //.  S.  31 
H.  8.  35  H.  8.  and  all  other  statutes  made  in  the  time  of  Henry  VIII. 
concerning  religion  are  repealed. (r) 

(r)  So  that  the  punishment  of  heresy  then  stood  as  it  was  at  common  law  before  any 
statute  made  against  it,' notwithstanding  which  there  were  some  examples  in  this  reign 
of  persons  burnt  for  heresy,  viz.  Joan  Backer  and  George  van  Parre,  wlio  were  put  to 
death  much  against  the  will  of  that  good  king  by  the  over-persuasion  of  archbishop 
Cranmer,  fur  which  reason  (as  bishop  Burnet  remarks)  what  that  archbishop  afterwards 
suffered  in  the  succeeding  reign  was  thought  a  just  retaliation  on  him.  Burnet's  Hist. 
of  lieforination,  To/.  II.  p.  112. 


403  HISTORIA  PLACITORUM  CORONA. 

By  the  statute  of  1  <§•  2  P.  S,^  M.  cap.  6.  the  statutes  of  5  7?.  2. 
2  H.  4.  and  2  H.  5.  are  revived:  but  the  statutes  in  Henry  VIII.'s 
time,  and  repealed  by  1  E.  6.  stood  still  repealed,  and  thus 
[404]  they  continued  till  1  Eliz.  and  if  there  had  needed  any  far- 
ther repeal  of  the  statutes  of  25  and  31  H.  8.  besides  what 
was  done  by  1  E.  6.  yet  the  statute  of  1  (§•  2  P.  S,^  M.  cup.  8.  in  fine 
hath  this  clause,  that  was  never  repealed  by  the  statute  of  1  Eliz. 
nor  any  other  statute  since  made,  viz.  "That  the  ecclesiastical  juris- 
diction of  archbishops,  bishops  and  ordinaries  be  in  the  same  state 
for  process  of  suits,  punishments  of  crimes,  and  execution  of  censures 
of  the  church,  with  knowledge  of  causes  belonging  to  the  same,  and 
as  large  in  these  points  as  the  said  jurisdiction  was  in  the  20th  year 
of  Henry  VIII."  which  doubtless  repealed  all  acts  made  between 
20  H.  8.  and  1  8^"  2  P.  <§•  M.  in  derogation  or  alteration  of  the  eccle- 
siastical jurisdiction,  or  the  styles  or  forms  of  their  proceeding  by 
Henry  VIII.  or  Edward  VI. 

V.  I  come  now  to  the  time  of  queen  Elizabeth.  '■  "  •   '• 

By  the  act  of  1  Eliz.  cap.  1.  there  are  these  alterations:  1.  The 
statutes  of  I  S,^  2  P.  <§-  M.  cap.  6.  5  R.2.2  H.  4.  2  H.  5.  are  repealed, 
so  that  now  the  whole  jurisdiction  touching  heresy  stands  as  it  did  at 
common  law,  with  such  farther  additions  as  are  made  by  that  statute 
of  1  Eliz.  2.  The  queen,  her  heirs  and  successors  to  have  power  to 
issue  commissions  under  the  great  seal  to  exercise  all  jurisdictions 
spiritual  and  ecclesiastical  within  this  kingdom,  and  to  visit,  reform, 
redress,  order,  correct,  and  amend  all  errors,  heresies,  schisms,  S,'c. 
which  by  any  spiritual  or  ecclesiastical  power  can  or  may  be  law- 
fully reformed.  3.  That  such  commissioners  shall  not  have  power 
to  determine  any  matter  to  be  heresy,  but  only  such  as  have  been 
heretofore  determined  to  be  heresy:  1.  By  the  authority  of  the 
canonical  scriptures.  2.  Or  by  any  of  the  first  four  general  councils, 
or  any  other  general  council,  wherein  the  same  was  declared  heresy 
by  the  express  and  plain  words  of  the  said  canonical  scriptures. 
•3.  Or  such  as  shall  hereafter  be  determined  heresy  by  parliament 
with  the  assent  of  the  clergy  in  their  convocation. 

Upon  this  statute  these  things  are  observable : 

1.  By  this  statute  the  ancient  common  law  was  revived  for  the 
conviction  of  heretics,and  delivering  them  over  to  the  secular  power, 
which  might  at  common  law  be  done  either  in  a  provincial 
[  405  ]  .council,  or  by  the  diocesan  alone,  and  accordingly,  it  is  said 
Co.  P.  C.  cap.  5.(.s)  the  conviction  of  heretics  was  practised 
ill,  the  queen's  time,  but  I  find  no  particular  instance  thereof  in  the 
queen's  time,(^)  but  in  the  case  of  Legal,  9  Jac.  it  was  so  resolved' 
by  four  judges,  and  accordingly  put  in  ure,  and  upon  such  a  convic- 
tion before  the  diocesan  a  writ  de  /lasrelico  comburendo  might  and 
did  issue  in  the  cases  o{  Legal  and  Wighlman  convict  oi  Jirianisni 

is)  p.  40. 

(<)  Tliat  is  of  a  conviction  in  a  provincial  council,  or  before  the  diocesan  alone, 
for  of  convictions  before  the  commissioners  some  instances  are  here  mentioned  by  our 
author. 

I. 


HISTORIA  PLACITORUM  CORONA..  405 

befjre  the  diocesan  and  left  to  the  secular  power,  who  were  accord- 
ingly burnt  :(i<)  vide  Baker's  Chronicle,  p.  446. 

2.  There  was  another  method  of  conviction  of  heresy,  and  there- 
upon deUvering  over  to  the  secular  power,  and  execution  of  the 
offender  by  writ  de  hseretico  comburendo,  namely  by  sentence  of  the 
commissioners  for  ecclesiastical  causes  instituted  by  the  statute  of 
1  Eliz.  but  this  takes  not  away  the  conviction  of  heresy  by  the  dio- 
cesan or  in  a  provincial  council,  but  these  remain  as  they  did  at  com- 
mon law,  and  thus  it  was  done  17  Eliz.  upon  John  Peters  and 
Henry  Dirwert,{x)  Flemings,  convict  of  heresy  before  the  commis- 
sioners for  Jlnabaptism,  and  thereupon  a  writ  de  hseretico  com- 
burendo  issued. 

3,  That  this  act  restored  the  issuing  of  a  writ  de  hseretico  com- 
burendo{ij)  according  to  the  course  of  the  common  law  against  a 
man  convict  of  heresy,  and  refusing  to  abjure,  or  having  abjured 
relapsed,  and  thereupon  delivered  to  the  secular  power. 

And  note,  that  this  writ  is  no  writ  of  course,  nor  can  the  chan- 
cellor or  keeper  issue  this  writ  upon  a  signijicavit  by  the  commis- 
sioners or  diocesan  without  a  special  warrant,  for  that  the  king 
may  see  cause  to  suspend  the  issuing  thereof,  or  wholly  supersede 
it,  or  pardon  the  sentence,  for  it  may  so  fall  out,  that  the  diocesan 
hath  adjudged  a  thing  to  be  heresy,  or  a  party  to  be  an 
heretic,  which  in  truth  and  reality  is  not  so,  or  it  may  be  the  [  406  J 
party  may  retract,  and  so  be  capable  of  mercy. 

But  the  course  was  for  the  diocesan  alone,  if  the  conviction  were 
singly  before  him,  or  for  the  diocesan  with  the  consent  of  the  com- 
missioners, if  the  conviction  were  before  them,  by  signijicavit  under 
the  seal  of  the  diocesaii  to  return  the  conviction  into  the  chancery, 
and  then  the  same  is  brought  before  the  king  and  his  council,  and 
after  deliberation  by  the  king  with  his  council,  a  special  warrant 
issues  from  the  king  by  the  advice  of  his  council,  to  the  chancellor 
or  keeper,  together  with  the  tenor  of  the  writ  de  hseretico  combu- 
rendo  expressed  in  the  warrant,  and  commanding  the  chancellor  or 
keeper  to  issue  it  under  the  great  seal,  which  warrant  is  filed  for  the 
keeper's  indemnity:  this  was  the  form  which  was  used  17  Eliz.  in 
the  case  of  the  Jinabaptists  above-named;  and  note,  altho  the  con- 
viction were  before  the  commissioners,  yet  the  diocesan  was  one  of 
the  conunissioners,  and  his  seal  to  the  signijicavit,  so  that  there 
were  the  junctures  of  both  authorities,  viz.  the  authority  of  the  dio- 
cesan according  to  the  course*  of  the  common  law,  and  of  the  com- 
missioners according  to  the  power  given  by  the  statute  of  1  Eliz. 
and  we  have  reason  to  believe,  that  the  subsequent  convictions  in 

{ii)  But  yet  ought  not  to  have  been  so  by  law,  according  to  tlie  opinion  of  lord  Coke, 
for  that  the  statute  of  2  H.  4.  cap.  15.  which  gave  the  writ  de  harelico  comburendo  was 
repealed,  and  at  common  law  no  such  writ  lay  upon  a  conviction  by  the  ordinary,  5  Co. 
Rep.  23.  a.  12  Co.  Rep.  5(i.  92. 

{JC)  Their  names  were  John  Wiehnacker  and  Hendrick  Ter  Wqort. 

iy)  Tlie  act  says  notliing  about  this  writ  one  way  or  other,  but  only  repeals  the 
several  statutes  relating  to  heresy,  and  so  leaves  the  matter,  as  it  was  at  common  law. 


406  HISTORIA  PLACITORUM  CORONA. 

the  queen's  time  pursued  this  form,  and  possibly  that  of  Legates  in 
9  Jac.  might  be  in  the  same  nature,  the  the  resolution  of  the  judges, 
upon  which  it  seems  the  process  was  formed,  takes  notice  only  of 
the  diocesan. 

4.  That  the  forfeiture  of  goods  or  lands  by  conviction  of  heresy  is 
by  this  act  repealed. 

5.  Here  is  the  first  boundary,  that  was  set  to  the  extent  of  heresy 
as  to  the  matter  thereof,  what  only  shall  be  adjudged  heresy ;(z) 
and  altho  this  clause  refers  expressly  only  to  the  commissioners,  yet 
it  is  to  be  the  measure  and  rule  for  diocesans,  and  the  convictions  in 
their  proceedings  against  heretics. 

But  it  is  true,  it  is  not  so  particular  and  certain,  as  might 
[  407  3  have  been  wished,  for  according  to  the  inclination  of  the 
judge  possibly  some  would  determine  that  to  be  heresy  by 
the  canonical  scriptures,  which  possibly  is  not  at  all  heresy,  nor  con- 
trary to  the  canonical  scriptures  but  iiowsoever  it  brought  heresy 
to  a  greater  certainty  than  before. 

Upon  this  statute  of  1  Eliz.  these  things  seem  to  me  to  be  true: 
1.  That  the  sig7iijicavit  of  the  conviction  of  heresy  ought  to  con- 
tain, even  at  common  law,  the  particular  heresy,  whereof  the  party 
was  convict,  and  without  such  particular  signijicavit  no  writ  de 
hseretico  comburendo  ought  to  issue;  and  the  reasons  are,  1.  Be- 
cause it  concerns  the  highest  temporal  interest  that  any  man  can 
have,  namely  his  life,  and  for  this  reason  even  in  smaller  temporal 
concerns  a  general  cause  or  return  of  heresy  or  criminousness  is  not 
sufficient;  it  is  not  a  sufficient  cause  of  refusal  or  non-admission  of 
a  clerk  to  allege,  that  he  is  crimiiiosus  (§'  non  idonenSyOX  that  he  is 
schismuticus  inveterutus  5  Co.  Hep.  58  a  Specofs  case,  and  the 
reason  is  very  well  given,  coment  que  nappent  al  court  la  roygne  a 
determiner  schismes  ou  heresies,  uncore  I'original  cause  del  suit 
esteant  mafter,  dont  le  court  le  roy  ad  conusance,  le  cause  del 
schisme  ou  heresie,  purque  le  presentee  est  refuse,  covient  estre  al- 
ledge  en  certain  al  entent  le  court  le  roy  poit  consult  ove  divines  a 
scaver,  si  ceo  soit  schisme  ou  nemy;  and  upon  the  same  reason  it  is, 
that  in  Keyser^s  case  upon  an  Habeas  Corpits,  and  fVarner's  case 
upon  a  false  imprisonment,  that  altho  the  statute  of  2  H,  4.  .enable 
the  ordinary  to  arrest  for  heresy,  it  is  not  a  sufficient  return  or  justi- 
fication to  say  the  party  was  an  heretic,  or  suspect  of  heresy,  but  he 
must  return  the  particular  heresy,  for  which  he  was  so  arrested,  that 
the  court  may  judge  upon  it;  and  tho  the  temporal  court  hath  no 
original  cognizance  of  heresy,  yet  it  being  incident  to  a  temporal  in- 
terest, namely  the  liberty  of  a  man's  person,  the  temporal  court 
shall  judge,  whether   it   be   heresy  or  no;(*)    and  accordingly   in 

(«)  And  great  cause  there  was  for  tliis  limitation,  as  appears  from  the  fore-mentioned 
cases  oi^  Keijser  and  Warner,  and  otiiors,  12  Cu,  Hep.  58.  aUho,  as  our  author  says,  there 
still  is  too  ijreat  a  latitude  left,  since  it  is  unavoidable,  but  difierent  interpretations  will 
in  many  cases  be  put  even  ui)on  scripture,  so  long  as  tiie  use  of  reason  and  liberty  of 
thouglit  continues. 

(*)  This  is  certainly  agreeable  to  the  law  of  the  land,  2  Co.  lustit.  G15,  623.  altho  it 


J 


HISTORIA  PLACITORUM  CORONiE.  408 

those  cases  they  did  adjudge  that  to  be  no  heresy,  which  the 
bishop  returned  as  an  heresy,  and  in  one  case  the  prisoner  was 
discharged,  and  in  the  other  case  recovered  by  an  action  of  false 
imprisonment.  Co,  P.  C.  cap.  5.  2.  Altho  heresy  be  a  case  of  eccle- 
siastical cognizance  and  jurisdiction,  and  as  long  as  it  only  con- 
cerns ecclesiastical  censures,  and  (so  far  forth  only)  faith  is  to  be 
given  to  them,  'till  reversed  by  appeal,  yea  altho  it  should  in  the 
sentence  itself  most  evidently  appear,  that  it  was  not  heresy,  yet  as 
to  the  inflicting  of  death  at  common  law  they  had  no  pow^r,  but  all 
they  could  do  was  to  commit  him  to  the  secular  power,  their  busi- 
ness was  then  at  an  end  ;  but  now  begins  tlie  concern  of  the  secular 
povver,  and  herein  they  were  not,  as  lacqueys,  only  to  follow  what 
the  ecclesiastical  judge  had  done,  for  now  the  life  of  a  subject 
was  concerned  either  to  be  taken  away  or  not,  and  that  merely  by 
the  secular  power,  and  herein  the  secular  power  had  a  judgment  of 
discretion  of  their  own,  which  they  are  to  exercise,  but  yet  cannot 
do  it,  unless  the  special  matter  of  the  heresy  be  certified  to  them. 

2.  Admit  a  general  certificate  without  shewing  the  particular  cause 
of  heresy  were  good  at  common  law,  yet  since  the  statute  of  1  Eliz. 
it  must  be  particular,  because  an  act  of  parliament,  which  belongs  to 
the  interpretation  of  the  common  law,  directs  what  shall  be  heresy 
and  what  not,  and  the  king  and  his  council  are  to  give  the  warrant 
for  issuing  the  writ,  and  therefore  must  be  ascertained,  whether  it  be 
an  heresy  within  the  description  of  this  act,  and  the  chancellor  or 
keeper  of  the  great  seal  is  to  affix  the  seal  and  issue  the  writ,  and 
therefore  ought  to  be  satisfied  by  the  signjicavit,  that  it  is  an  heresy 
within  that  act,  and  if  he  be  not,  he  is  not  to  seal  it,  for  it  concerns 
the  life  of  a  subject;  these  are  not  bare  ministerial  acts  by  the 
king  and  his  council  or  chancellor  in  subservience  to  theeccle-  [409]] 
siastical  jurisdiction,  but  they  are  acts  judicial,  where  they 
are  to  exercise  both  a  legal  and  well  warranted  discretionary  judg- 
ment, and  therefore  must  have  the  cause  before  them  upon  the  sig- 
nijicavit,  and  not  by  a  bare  general  story  of  a  conviction  of  heresy, 
and  therefore  if  upon  the  return  o{  the  significavU,  whereby  the  party 
is  convict  and  sentenced  either  as  an  obstinate  or  relapsed  heretic,  it 
shall,  by  the  particularity  of  the  return,  appear,  that  it  is  not  heresy, 
there  ought  no  warrant  to  be  granted  for  the  issuing  of  the  v/rit,  and 

be  what  the  clergy  have  always  disrelished,  wlio  never  liked  to  submit  their  proceedings 
to  the  judgment  of  the  king's  courts,  or  of  any  authority  but  what  was  ecclesiastical, 
accordingly  we  find  a  decree  of  BonifaceY.  "  WJiereby  all  powers,  lords  temporal,  and 
rectors  with  their  officers  are  forbid  to  judge  or  take  cognizance  of  heresy,  it  being 
merely  ecclesiastical,  or  to  refuse  to  execute  the  punishments  enjoined  by  them,  or  any 
way  directly  or  indirectly  to  hinder  their  process  or  sentence  under  the  pain  of  excom- 
munication, which  if  they  obstinately  lie  under  for  a  year,  they  are  to  be  condemned  aa 
heretics  ;"  Sixt.  decretal.  I.  5  tit.  2  cop.  Inquisitionis  ncgotium  :  this  decree  is  con- 
firmed by  the  general  council  of  Constance,  sess.  45.  See  the  constitutions  of  arch- 
bishop Boniface,  cap.  de  impetranlibus  prohibitiones,  (Sec.  cap.  de  malitia  judicis 
secularis,  &c.  cSj-  cap.  dc  poena  impedicntium,  &,c.  See  also  archbishop  Bancroft's  ob- 
jections, 2  Co.  Instil.  GO  I,  609,  Sfc.  Codex  Leg.  Ecclesiast.  Anglic,  p.  1066.  Fref.  to 
Codex,  p.  VJ, 


409  HISTORIA  PLACITORUM  CORONA. 

if  granted,  yet  the  writ  ought  not  to  be  sealed,  and  therefore  the  cer- 
tificate or  signijicavit  must  be  special  and  certaip.(*) 

Again,  tiiis  definition  or  circumscription  of  heresy  is  by  an  act  of 
parliament,  and  tho  the  matter  of  it,  viz.  Heresy,  be  of  ecclesiastical 
cognizance,  yet  the  interpretation  of  the  act  of  parliament  is  of  a 
temporal  cognizance,  especially  where  a  temporal  interest,  and  the 
greatest  temporal  interest  in  the  world,  namely  life,  is  concerned:  we 
have  many  acts  of  parliament,  that  concern  matters  of  ecclesiastical 
cognizance,  as  touching  clergy  and  purgation,  touching  matrimony 
and  the  prohibited  degrees,  yet  when  these  acts  of  parliament  come 
to  be  expounded,  the  temporal  judge  hath  the  cognizance  of  them. 

The  statute  of  2  H.  4.  hath  two  notable  clauses,  one  whereby  the 
ordinary  hath  power  to  arrest  for  heresy,  there  is  in  that  clause  no 
express  provision,  that  credence  shall  be  given  to  the  ordinary  and 
therefore  if  he  arrest  for  that,  which  is  not  heresy,  the  arrest  is  un- 
lawful, and  as  an  incident  to  an  interest  at  common  law,  z;/z.  the 
liberty  of  the  subject,  the  temporal  court  hath  power  to  determine, 
whether  it  be  heresy  or  not,  as  is  above-shewn:  the  other  clause  is  a 
power  committed  to  the  ordinary  to  deliver  over  the  party  convict  to 
the  sheritf  to  be  executed  without  any  writ  de  hseretico  comburendo. 
This  was  introductory  of  a  new  law,  and  therefore  the  sheritf  or 
officer  might  possibly  scruple  not  only  whether  there  were 
[410]  such  a  sentence, («)  but  whether  the  thing,  for  which  the 
party  was  condemned  as  an  heretic,  were  really  heresy;  but 
to  avoid  all  difficulties  of  this  kind  this  imusual  clause  is  added,  that 
herein  credence  shall  be  given  to  the  diocesan  or  his  commissary. 

We  are  here  in  the  case  of  an  act  of  parliament,  an  act  that  intro- 
duceth  a  new  circumscription  of  heresy,  an  act  that  concerns  the  life 
of  the  subject,  in  a  business,  which  after  the  ordinary  hath  passed  his 
sentence,  is  now  wholly  left  to  the  king,  who,  tho  he  be  supreme  in 
matters  ecclesiastical  as  well  as  temporal,  yet  in  the  issuing  of  his 
writ  de  hseretico  comburendo  is  looked  upon  by  the  ecclesiastical 
judge,  as  acting  by  his  secular  power,  for  that  is  the  conclusion  of  the 
sentence,  niz,  that  tie  be  left  to  the  secular  power,  in  this  he  acts  not 
ministerially  but  judicially,  and  therefore  upon  all  accounts  must  have 
a  certain  return  of  the  cause  of  the  heresy,  and  if  it  shall  appear  to  him, 
or  to  the  chancellor,  that  is  to  seal  the  writ,  that  the  return  contains 
not  any  certainty  of  the  heresy,  or  that  which  is  returned  as  an  he- 
resy, be  not  such  as  is  described  by  the  statute  of  1  Eliz.  no  writ  de 
hseretico  comburendo  ought  to  issue,  whether  the  conviction  be  by 
the  high  commission,  or  diocesan,  or  convocation. (6) 

Blacks.  Com.  Lib.  iv.  ch.  4.  p.  43,  44.  &c.  1  Hawk.  P.  C.  ch.  23, 

(*)  The  same  reasoning  holds  in  granting  the  writ  de  excommunicato  capiendo,  for 
that,  affecting  tlie  liberty  of  a  man's  person,  concerns  a  temporal  interest. 

(»)  Tiiere  could  be  no  room  for  this  scruple,  because,  unless  the  sheriff  was  present  at , 
pronouncing  the  sentence,  the  ordinary  had  no  ])ower  by  2  //.  4.  to  deliver  the  heretic  to 
the  sheriff",  nor  could  the  shcriiF  proceed  to  execute  him  without  a  writ. 

(6)  Since  our  author  wrote,  ahlio  no  alteration  has  been  made  in  tlie  definition  of  he- 
resy, whicli  still  subsists  upon  the  loot  of  the  statute  of  1  Eliz.  yet  tlie  severer  part  of  the 
punishment  is  taken  away,  and  the  doubt  removed,  whether  the  party  be  liable  to  a  writ 


HISTORIA  PLACITORUxM  CORONA.  411 

CHAPTER  XXXI. 

CONCERNING   HOMICIDE   AND   FIRST   OF  SELF-KILLING   OR    FELO   DE  SE: 

Having  gone  thro  the  pleas  of  the  crown  touching  high  treason,  mis- 
prision-of  treason,  and  petit  treason,  the  order  that  I  have  proposed 
leads  me  to  consider  of  felony,  S,'C.  and  these  are  of  two  kinds,  felonies 
by  the  common  law,  and  felonies  made  such  by  act  of  parliament. 

Felonies  by  common  law  are  such,  as  either  concern  the  taking 
away  of  life,  or  concern  the  taking  away  of  goods,  or  concern  the 
habitation,  or  concern  the  obstruction  of  the  execution  of  justice  in 
criminal  and  capital  causes,  as  escapes,  rescues,  ^^c. 

In  the  first  place  therefore  come  to  be  considered  those  felonies  or 
offenses,  that  relate  to  life  or  the  taking  away  thereof  without  due 
process  of  law;  and  this  again  is  either  that,  which  concerns  the  loss 
of  life  happening  to  a  man's  self,  or  happening  to  another. 

As  to  the  first  of  these,  namely  the  consideration  of  that  offense  or 
crime,  that  concerns  a  man's  own  Ufe,  where  there  is  no  other  offen- 
der but  the  sufferer,  this  falls  under  these  two  heads  or  divisions. 

I.-Homicidiurn  sui-ipsius,  or  felony  of  a  man's  self 

II.  Infortunium,  or  pure  accident,  or  at  least,  where  no  other 
reasonable  creature  is  concerned  in  the  effecting  of  it. 

Of  the  former  of  these  in  this  chapter. 

Felo  de  se  or  suicide  is,  where  a  man  of  the  age  of  discretion,  and 
compos  mentis,  voluntarily  kills  himself  by  stabbing,  poison,  or  any 
other  way. 

,   No  man  hath  the  absolute  interest  of  himself,  but  1.  God  almighty 
Kath  an  interest  and  propriety  in  him,  and  therefore  self- 
murder  is  a  sin  against  God.     2.  The  king  hath  an  interest  [  412  ]] 
in  him,  and  therefore  the  inquisition  in  case  of  self-murder 
is  felonicl  Sr  voluntarit  seipsum,  interfecit  fy  murderavit  contra 
paceni  domini  regis. 

Co.  Lift.  §  194.  fol.  127.  a.  M.  11.  Jac.  Wright's  case,  a  man  to 
the  itUent  to  make  himself  impotent,  and  thereby  to  have  the  more 
colour  to  beg,  caused  another  to  strike  off  his  hand,  for  this  they  were 
both  indicted,  fined  and  ransomed. 

de  h<Eretico  comburendo,  for  by  29  Car.  2.  cap.  9.  this  writ  and  all  proceedings  thereon, 
and  all  capital  punishments  in  pursuance  of  ecclesiastical  censures  are  utterly  abolished 
and  taken  away,  so  that  heresy  is  now  punishable  only  with  excommunication,  (except 
in  the  case  of  a  clergyman,  who  is  also  to  be  deprived  and  degraded;)  the  civil  effects  of 
which  are,  that  the  party  communicated  is  disabled  from  making  a  will.  Swinb.  of  Wills, 
part.  2.  §  22.  or  from  suing  for  any  debt  or  legacy,  Ibid.  part.  5.  §  6.  or  doing  any  legal 
act,  Co.  Lit.  133.  b.  and  if  the  party  do  not  submit  within  forty  days  after  publication, 
upon  a  signijicavit  into  Chancery,  there  issues  a  writ  de  excommunicate  capiendo,  by 
virtue  of  which  he  may  be  arrested  and  detained  in  prison,  till  he  do  submit;  so  that 
there  seems  now  to  he  no  material  difference  between  a  simple  heretic  and  a  relapsed 
heretic,  for  excommunication  not  being  a  definitive  sentence,  but  only  a  process  for  con- 
tempt to  inforce  obedience  to  the  sentence,  whenever  the  party  complies  with  it  by  re- 
tracting, doing  penance,  S^c.  altho  a  relapsed  heretic,  he'  is  to  be  absolved. 
VOL.    I.— 36 


412  HISTORIA  PLACITORUM  CORONA. 

A  man  or  woman  as  to  capital  offenses  is  of  the  age  of  discretion 
at  fourteen  years  old:  vide  qiise  supra  dicta  sunt  cap.  3. 

Compos  inentis. 

If  he  lose  his  memory  by  sickness,  infirmity,  or  accident,  and  kills 
himself  he  is  woifelo  de  se,  neither  can  he  be  said  to  commit  murder 
upon  himself  or  any  other. 

If  a  man  gives  himself  a  mortal  stroke,  while  he  is  non  compos, 
and  recovers  his  understanding,  and  then  dies,  he  is  wo{felod.ese,{oT 
tho  the  death  complete  the  homicide,  the  act  must  be  that,  which 
makes  the  offense. 

P.  22  E.  3.  Coi'on.  244.  Co.  P.  C.  54.  vide  supra  cap.  4.  who 
shall  be  said  non  compos. 

It  is  not  every  melancholy  or  hypochondriacal  distemper,  that  de- 
nominates a  man  non  compos,  for  there  are  few,  who  commit  this 
offense,  but  are  under  such  infirmities,  but  it  must  be  such  an  aliena- 
tion of  mind,  that  renders  them  to  be  madmen  or  frantic,  or  destitute 
of  the  use  of  reason:  a  lunatic  killing  himself  in  the  fit  of  Junacy  is 
notye/o  ^/e  5e,  otherwise  it  is,  if  it  be  at  another  time. 

What  a  voluntary  killing. 

If  a  man  voluntarily  give  himself  a  mortal  wound,  and  die  within 
a  year  and  a  day  of  that  wound,  he  is  felo  de  se,  and  he  cannot  purge 
the  crime,  nor  the  forfeiture  inflicted  by  the  law,  by  his  repenting  of 
what  he  had  done.  8  E.  4.  4. 

It  must  be  simply  voluntary,  and  with  an  intent  to  kill  himself. 

If  ./5.  with  an  intent  to  prevent  a  gangrene  beginning  in  his  hand 
doth  without  any  advice  cut  off  his  hand,  by  which  he  dies, 
r  413  3  he  is  not  thereby  felo  de  se  for  tho  it  was  a  voluntary  act, 
yet  it  was  not  with  an  intent  to  kill  himself. 

It  is  said  Co.  P.  C.  p.  54.  and  by  Mr.  Ballon,  cap.  92., (a)  that  if  ^. 
gives  P.  a  stroke,  that  he  falls  to  the  ground,  B.  draws  his  knife  and 
holds  it  up  for  his  own  defense,  ^.  in.  haste  falling  upon  P.  to  kill 
him  falls  upon  the  knife,  whereby  he  is  wounded  to  death,  #/?.  is  felo 
de  se,  and  for  that  they  cite  44  E.  3.  44.  44  ,/iss.  17.  where  indeed  it 
is  adjudged,  and  that  rightly,  that  P.  is  not  guilty,  and  shall  not  for- 
feit his  goods,  and  that  it  is  not  barely  se  defendendo,  for  he  did  not 
strike,  only  held  up  his  knife,  and  so  is  simply  not  guilty;  and  all  that 
Knivett  says  is,  Est  trove,  que  le  mort  occise  lui  rnesme,  and  ad- 
judged that  P.  is  not  guilty,  nor  his  goods  forfeit:  but  Knivett  says 
not,  that  ^^.  is  felo  de  se,  neither  indeed  is  he,  but  it  is  only  per  infor- 
tuniu?n. 

But  i(  ^i.  had  stricken  at  P.  with  a  knife  intending  to  kill  him,  and 
missing  P.  had  stricken  himself,  and  killed  himself,  there  he  had 
been  Jelo  de  se,  because  that  act,  whereby  he  intended  to  murder  P. 
shall  have  the  same  construction,  if  it  kill  himself  or  any  other  per-, 
son,  as  it  should  have  done,  if  it  had  taken  its  effect  upon  P.  de  quo 
infra. 

Touching  the  forfeiture  of  Felo  de  se. 

(a)  New  Edit.  1727.  ca^.  144. 


1 


t 
HISTORIA  PLACITORUM  CORONA.  413 

He  doth  not  forfeit  his  lands  nor  his  wife's  dower. 

But  he  doth  forfeit  his  goods  and  chattels. 

As  to  the  relation  of  the  forfeiture. 

Baron  and  feme  joint  purchasers  of  a  term  for  years,  the  husband 
drowns  himself,  the  lease  is  forfeited,  and  the  wife  surviving  shall  not 
hold  it  against  the  king  or  almoner,  Ploicd.  Com.  260.  b.  Dy.  lOS. 
Dame  Hale's  case,  in  which  all  the  judges  agreed,  but  seem  to  inti- 
mate different  reasons:  Weston  held  the  relation  was  only  to  the 
death,  but  the  title  of  the  king  and  a  common  person  coming  toge- 
ther, the  king's  title  shall  be  preferred,  but  yet  they  concluded,  that 
the  forfeiture  relates  to  the  first  act,  whereby  the  felony  was  commits 
ted,  namely  the  throwing  himself  into  the  water,  and  so  the 
king's  title  commenced  in  the  life  of  the  husband,  and  [  414  ~\ 
amounted  to  a  forfeiture  in  his  life-time,  when  bylaw  it  was 
in  his  power,  either  by  his  disposal  or  forfeiture,  as  by  outlawry,  to 
bind  the  interest  of  the  wife,  and  therefore  they  say,  that  if  a  villain 
give  himself  a  mortal  wound,  and  the  lord  seize  the  goods,  and  then 
the  villain  die  of  the  wound,  the  king  shall  have  the  goods  against 
the  lord,  and  with  this  agrees  Littleton,  8  E.  4.  4. 

That  the  law  was  well  resolved  in  that  case  I  do  not  doubt,  but  I 
am  not  satisfied,  that  the  relation  of  the  forfeiture  is  to  the  time  of 
the  stroke  to  all  purposes,  no  more  than  in  case  of  another  felony, 
for  suppose  a  man  should  give  himself  a  mortal  stroke  and  live  eleven 
months  after,  how  shall  he  support  himself  and  his  family? 

But  whereas  in  other  cases  of  other  felonies  the  forfeiture  as  to 
goods  relates  neither  to  the  stroke,  nor  to  the  death,  but  to  the  convic- 
tion, here  the  forfeiture  relates  not  barely  to  the  presentment  or 
inquisition,  but  to  the  death  in  case  of  a/e/o  de  se,  for  being  his  own 
executioner  he  prevents  any  formal  conviction,  as  in  other  felonies.    ■ 

But  yet  in  order  to  this  forfeiture  it  is  necessary,  that  there  should 
be  a  record  to  entitle  the  king,  viz.  an  inquisition. 

Inquisitions  therefore  in  this  case  are  of  two  kinds,  viz.  if  the  body 
cannot  be  seen,  then  it  is  inquisible  before  the  justices  of  oyer  and 
terminer,  yea  or  before  the  justices  of  peace  of  the  county,  for  it 
is  a  felony,  and  within  the  extent  of  their  commission,  H.  37  Eliz. 
B.  R.  Langhton's  case,  Co.  P.  C.  p.  55., (6)  and  accordingly  adjudged. 
M.  1656.  in  Greeve's  case. 

And  so  if  an  indictment  of  felony  be  before  commissioners  o{  oyer 
and  terminer  or  goal-delivery,  «§'C.  and  ^.fiigam,  fecit  be  presented, 
if  process  be  made  against  those,  that  have  the  goods,  the  flight  may 
be  traversed,  for  it  is  but  an  inquest  of  office,  and  shall  not  conclude. 
47  E.  3.  26.  : 

But  it  is  there  held,  that  if  an  inquisition  be  taken  before  the  coro-> 
ner  super  visum  corporis,  that  a  man  is  felo  de  se,  that  inquisition 
shall  be  conclusive,  and  is  not  traversable  by  the  executors  or  ad- 
ministrators of  the  deceased,  Co.  P.  C.p.  55.  and  the  like 
seems  to  be  held  by  Stamford,  P.  C.  p.  183.  b.  where  a  [415  ] 
fugani  fecit  is  presented  before  the  coroner  super  visum 

{b)  In  Margine. 


415  HISTORIA  PLACITORUM  CORONA. 

corporis,  where  it  is  found,  that  a  murder  was  committed,  and  the 
murderer  fled;  and  yet  (he  offender  himself  shall  be  received  to  plead 
not  guilty  to  the  indictment  or  inquisition  before  the  coroner,  as  by 
daily  experience  it  appears,  tho  Stamford  makes  it  there  a  question 
whether  the  fit g am  fee il  be  traversable. 

And  therefore  I  remember  in  the  king's  bench  in  the  case  o{  Bar- 
clay it  was  ruled,  that  in  case  of  an  inquest  before  the  coroner  stiper 
visum  corporis,  wherein  the  party  was  found y^/o  de  se,  the  inquisi- 
tion was  quashed  in  the  king's  bench,  because  upon  examination  it 
appeared,  that  the  coroner  refused  to  let  the  jury  hear  .witness  on  the 
part  of  him  that  was  dead,  to  prove  that  he  was  not  felo  de  se,  for 
the  coroner  ought  to  hear  evidence  on  both  sides,  partly  because  it 
was  doubted,  that  the  inquisition  in  this  case  was  conclusive,  and  a 
conviction,  and  not  traversable,  and  the  court  of  king's  bench,  who 
are  the  sovereign  coroner,  did  set  aside  that  inquisition,  and  order 
the  coroner  to  inquire  de  novo  super  visum,  corporis,  because  the  body 
was  yet  to  be  viewed.  H.  1658.  B.  R.  Barclay'' s  case.(c) 

If  an  inquisition  be  taken  before  the  coxonex  super  visum  corporis, 
whereby  the  party  dead  is  found  to  have  died  per  infortunium,  if  it 
is  suggested  on  the  part  of  the  king  or  almoner,  that  he  was  felo  de 
se,  and  in  the  king's  bench  a  writ  of  melius  inqiiirendum  is  prayed 
to  the  sheriff",  it  seems  j^t  ought  not  to  be  granted,  because  the  coroner 
is  theproper  officer,  and  accordingly  it  was  denied  in  Pasch.  24Car.  2. 
and  if  granted,  and  an  inquisition  taken,  it  hath  been  held  vo\d{d)  by 
the  statute  of  28  E.  3.  cap  9.  tho  many  precedents  of  such  writs  are 
extant.  H.  37  Eliz.  B.  R.  Croke,7i.  13,  Harks  Ion's  case,  F.  N.  B. 
144,  250.(<>) 

But  it  seems,  if  the  coroner's  inquisition  omit  the  finding  of  the 
goods  of  the/e/o  de  se,  that  may  be  supplied  by  a  writ  of  melius' in- 
quire7idum  directed  to  the  sheriff,  for  that  is  not  witiiin  the  statute  of 
2Q  E.  3. 

But  whensoever  any  inquisition  is  taken  by  the  sheriff  by 
["416  3  ^  writ  or  con\m\s,?\o\\o{  melius  inquirendum,  without  ques- 
tion that  inquisition  is  traversable. 

If  an  inquisition  be  taken  before  the  coroner  super  visum  corporis 
de  villis  Ji.  B.  C.  and  D.  and  says  not  de  quatuor  villatis  proximo 
adjacent,  according  to  the  statute  of  4  E.  1.  de  coro7iatoribus,{f) 
yet  it  hath  been  held  the  inquisition  is  good,  because  the  statute  is 
only  directory.  H.  1658.  B.  R.  Barclay's  case.(,g') 

But  altho  an  inquisition  taken  before  the  coYon*^,x  super  visuvi  cor- 
poris in  the  point  oi  felo  de  se  is  of  great  authority  and  a  sufficient 
record,  whereupon  process  may  be  made  against  those  that  detain 
the  goods  found  in  the  inquisition,  yet  it  seems  to  me,  that  it  is  tra- 
versable in  the  very  point  so  found,  for  it  is  but  an  inquest  of  office, 
and  whereupon  the  party  grieved  thereby  can  have  no  attaint;  but 

•  (c)  2  Sid.  90.  101.  id)  2  Ander.  204. 

(r)  Edit.  1718.  jj.  322,554. 

( /")  Tliis  statute  was  but  an  afFirmancc  oftlie  common  law,  Brit.  7.  a. 
(g)  2  Std,  144.  See  also  the  King  versus  Crosse,  Sfc.  1  Sid.  204. 


HISTORIA  PLACITORUM  CORONiE.  416 

otherwise  it  is  of  a  presentment  oi  ^  fugam  fecit  before  the  coroner. 
8  E.  4  4. 

The  coroner  hath  power  super  visum  corporis  to  inquire  touching 
the  murder  or  interfection  of  the  party  that  is  dead,  and  also  of  all 
accessaries  before,  and  of  their  flight,  but  not  of  accessaries  after  the 
fact.  4  H.  7.  IS.  b.{h),  yet  the  party  presented  before  the  coroner  to 
be  principal  or  accessary  before  is  not  convict  by  such  presentment, 
but  shall  be  arraigned  and  plead  to  the  felony,  and  I  know  no  diff"er- 
ence  between  that  and  this;  and  it  seems  unreasonable,  that  by  an 
inquest  taken  against  a  dead  person,  whereby  he  is  found /e/o  de  sCy 
that  the  executors,  administrators,  legatees,  and  children  of  the  de- 
ceased should  be  concluded,  and  lose  the  goods  of  the  deceased  with- 
out an  answer,  by  an  inqusition  which  may  be  taken  by 
the  coroner  behind  their  backs,  and  I  find  no  book  express  [417  ] 
in  it,  but  the  opinion  of  my  lord  Coke,  P.  C.  55.,{i)  for  the 
doubt  of  Mr.  Stamford,  P.  C  1S3.  is  only  upon  a  fugam  fecit,  and 
in  the  case  of  Barclay  1658,  the  Court  of  King's  Bench  were  not 
satisfied,  that  it  was  conclusive. 

P.  45  E.  3.  inter  communia  scaccarii  there  was  a  presentment 
(before  the  coroner,  as  it  seems,  but  it  is  not  so  expressed  in  the 
record)  that  Walter  Page  felonice  se  siibmersit,  <§'  sic  felo  de  se 
devenit,  ^nd  thereupon  a  writ  issued  out  of  the  Exchequer  to  inquire 
what  debts  were  due  to  Walter  Page  ;  the  sheriff's  of  London,  took 
an  inquisition,  whereby  it  was  found  that  Simon  Long  of  Essex  was 
indebted  to  Walter  Page  at  the  time  of  his  death  in  40/.  by  bill, 
thereupon  process  issued  against  Simon  Long  to  answer  the  debt, 
who  came  in  and  confessed  he  owed  the  debt  to  Walter  Page,  dicit 
tamen,  quod  domino  regi  reddere  non  debet,  quia  qualitercunque 
praesentatum  fuit,  quod  dictus  Walteriis  Page  nequiter  and  felonice 
se  submersit,  ut  praedicitur,  idem  Walteriis  Page  interfectus  fuit 
per  emulos  suos,  &  per  ipsos  in  quodam  fossato  in  loco  vocato  the 
wilds  in  com.  Surrey  projectus,  absque  hoc,  quod  ipse  aliqualiter 
se  submersit;  and  thereupon  isssue  was  joined,  and  by  a  jury  of 
Surrey  found,  quod  dictus  Walterus  Page  fuit  interfectus  per  emu- 
los suos,  &  in  fossato  projectus,  absque  hoc,  quod  ipse  aliqualiter  se  . 
submersit. 

There  a  traverse  was  taken  to  the  presentment,  which  nfiust  needs 
be  before  the  coroner  by  the  whole  circumstance  of  the  case,  tho  the 
coroner  be  not  mentioned  in  the  record. 

And  with  this  agrees  the  book  of  8  E.  4.  4.  that  the  finding  of 
one  to  he  felo  de  se  is  traversable,  tho  found  before  the  coroner;  but 

{h)  This  case  says  notliing  directly  of  the  coroner's  power  to  inquire  of  accessaries,  yet 
by  resolvinj;;,  that  in  case  ot'  an  accessary  before  the  iact  presented  before  tlie  coroner, 
it  it  was  found  he  fled,  lie  should  forfeit  iiis  groods,  but  not  so  in  case  of  an  accessary  after 
the  fact,  it  seems  strongly  to  imply,  that  the  coroner  had  jurisdiction  in  the  one  case,  but 
not  in  the  otiier;  and  Stamford  says,  tiiat  the  judgres  in  that  case  of  4  H.  7.  abridged  the 
coroner  of  a  power,  which  lie  would  have  usurped  in  inquiring  of  those,  who  were  acces- 
saries after  the  murder.     See  to  this  purpose  Dalison  32, 

(i)  See  also  to  the  same  purpose  Hob.  317. 


417  HISTORIA  PLACITORUM  CORONA. 

indeed  it  holds,  that  a  fugam  fecit  presented  before  the  coroner  is 
not  traversable,  quia  aimtient  ley  de  corone.{k) . 

If  there  be  two  coroners  in  a  county,  the  outlawry  must  be  given 

by  both,  ullagatns  est  per  judicium  coronatorum,  yet  one  of  them 

may  take  an  inquisition  super  visum  co?y)oris,  M.  6  4*  7  Eliz.C.  B.{1) 

By  the  statute  of  3  H.  7.  cap.  1.  the  coroner  ought  to  re- 

{[418]]  turn  and  certify  the  inquisition  taken  by  him  to  the  next 

goal-delivery,  or  into  the  king's  bench. 

And  thus  far  touching  felodese  and  his  forfeiture. 

There  is  another  kind  of  death  of  a  man,  which  may  be  consider- 
able in  this  place,  namely  the  death  of  a  manner  infortunium,  and/ 
this  is  of  two  kinds,  viz. 

1.  Where  one  man  is  the  cause  of  another  man's  death  withoift 
any  ill-intent,  and  by  misfortune:  of  this  I  shall  treat  under  the  dis- 
tribution of  homicide. 

2.  When  a  man  comes  to  an  untimely  end,  where  no  other  rea- 
sonable creature  concnrs  to  it,  and  this  is  properly  per  infortunium. 

As  where  a  man  falls  from  an  horse,  or  house,  or  boat,  or  into  a 
pit,  or  a  tree  or  tile  fall  upon  him  and  kill  him,  or  is  killed  by  a  beast, 
in  this  case  the  coroner  ought  to  take  an  inquiry  super  visum  cor- 
poris, and  also  of  the  manner  and  means,  how  he  came  by  his  death, 
and  of  the  thing,  whereby  it  happened,  and  of  the  value  thereof,  be- 
cause in  many  cases  there  is  a  forfeit  belonging  to  the  king  as  a  deo- 
dand,  whereof  in  the  next  chapter.[l] 

(A-)  See  Slamf.  Prerog.  46.  b.  (I)  See  Hob.  70. 

[1]  By  4  Geo.  IV.  c.  52,  s.  1,  it  shall  not  be  lawful  for  any  coroner,  or  other  officer 
having  authority  to  hold  inquests,  to  issue  any  warrant  or  other  process  directing  the 
interment  of  tiic  remains  of  persons  against  whom  a  finding  of  fclo  de  se  shall  be  had, 
in  any  public  higliway;  but  such  coroner  or  other  officer  shall  give  directions  for  the 
private  interment  of  the  remains  of  such  person  felo  de  se,  without  any  stake  being 
driven  through  the  body  of  such  person,  in  the  church-yard,  or  other  burial-ground  of 
the  parish  or  place  in  which  the  remains  of  such  person  might,  by  the  laws  or  customs 
of  England,  be  interred,  if  the  verdict  of  felo  de  se  had  not  been  found  against  such 
person,  such  interment  to  be  made  within  twenty-four  hours  fi^om  the  finding  of  the 
inquisition,  and  to  take  place  between  the  hours  of  nine  and  twelve  at  nigiit.  Proviso 
not  to  authorize  the  performing  of  any  of  the  rites  of  Christian  burial  on  the  interment 
of  the  remains  of  any  such  person,  nor  to  alter  the  laws  or  usages  relating  to  the 
burial  of  such  person,  except  so  far  as  relates  to  the  interment  of  such  remains  in  such 
church-yard  or  burial-ground  at  such  time  and  in  such  manner. 

By  self-murder  all  the  chattels,  real  and  personal,  which  the  felo  de  se  has  in  his  own 
right  are  forfeited,  and  also  all  chattels  real  whereof  he  is  possessed  either  jointly  with 
his  wife  or  in  her  right,  and  also  all  bonds  and  other  personal  things  in  action  belonging 
solely  to  himself,  and  also  all  personal  things  in  action,  and,  as  some  say,  entire  chattels 
in  possession  to  which  he  was  entitled  jointly  with  another,  on  any  account  except  that 
of  merchandise.  But  it  is  said  thut  he  shall  forfeit  a  moiety  only  of  such  joint  chattels 
as  may  be  severed,  and  nothing  at  all  of  what  he  was  possessed  of  as  executor  or  ad- 
ministrator. His  lands  of  inheritance  are  not  forfeited,  nor  his  wife  barred  of  dower. 
No  part  of  his  personal  estate  vests  in  the  king  before  the  self-murder  is  found  by  some 
inquisition.  But  after  inquisition  it  is  forfeited  from  the  time  the  act  done.  4  Bl, 
Com.  190.  n.  22.   Stephens,  C.  L.  145-7.    See  post,  ch.  32,  note. 

Suicide  consists  in  a  man's  deliberately  putting  an  end  to  his  own  existence,  or  com- 
mitting  any  unlawful  malicious  act,  the  consequence  of  wliich  is  his  own  death — as  if 


HISTORIA  PLACITORUM  CORONA.  418 

attempting  to  kill  another  he  runs  upon  his  antagonist's  sword,  or  shooting  at  another  the 
gun  bursals  and  kills  himself.  4  Bl.  Com.  189. 

But  the  act  must  be  strictly  his  own,  for  if  a  man  desire  another  to  kill  him,  who  com- 
plies,  the  person  killed  is  noifelo  de  se.though  the  killer  is  a  murderer.  1  Hawk.  c.  27,  s.  6. 
1  Russell,  424,  426. 

So  he  must  be  of  years  of  discretion,  and  in  his  senses.  4  Bl.  C.  189. 

There  may  be  an  accessary  before  the  fact  to  self-murder,  for  if  a  man  persuades 
another  to  kill  himself,  and  he  does  so,  the  adviser  is  guilty  of  murder,  as  an  accessary 
before  the  fact.  4  Bl.  C.  189.  Keilw.  136.  Rex  v.  Russell,  R.  Sf  M.  C.  C.  R.  356.  Vaux's 
Case,  4  Rep.  44.  b. 

Where  two  persons  agree  to  die  together,  and  one  of  them,  at  the  persuasion  of  the 
other,  buys  poison  and  mixes  it  in  a  potion,  and  both  drink  of  it,  and  he  who  bought 
and  made  the  potion  survives  by  using  proper  remedies,  and  tlie  other  dies;  it  is  said  to 
be  the  better  opinion,  that  he  who  dies  shall  be  adjudged  a  felo  de  se,  because  all  that 
happened  was  originally  owing  to  his  own  wicked  purpose,  and  the  other  only  put  it  in 
his  power  to  execute  it  in  that  particular  manner.  1  Hawk.  P.  C.  c.  27, «.  6.  Keilw.  136. 
Moor,  Ibi. 

If  a  man,  intending  to  shoot  at  another,  mortally  wound  himself  by  the  bursting  of 
the  gun,  he  is  felo  dese;  his  own  death  being  the  consequence  of  an  unlawful,  ma- 
licious  act  towards  another.  It  has  also  been  said,  that  if  A.  strike  B.  to  the  ground, 
and  B.  draw  a  knife  and  hold  it  up  for  his  own  defence,  and  A.  in  haste  falling  upon  B. 
to  kill  him,  fall  upon  tiie  knife  and  be  thereby  killed,  A.  is  felo  de  se;  3  Inst.  54.  Dalt. 
c.  144;  but  this  has  been  doubted.    1  Hawkins,  F.  C.  c.  27,  s  4. 

A  husband  and  wife  being  in  extreme  poverty  and  great  distress  of  mind,  the  husband 
said,  "  I  am  weary  of  life,  and  will  destroy  myself;"  upon  which  the  wife  replied,  "  If 
you  do,  I  will  too."  The  man  bought  some  poison,  mixed  it  with  some  drink,  and  they 
both  partook  of  it.  The  husband  died  ;  but  the  wife,  by  drinking  salad-oil,  which 
caused  sickness,  recovered,  and  was  tried  for  the  murder  of  her  husband,  and  acquitted ; 
but  solely  on  the  ground  that,  being  the  wife  of  the  deceased,  she  was  under  his  con- 
trol ;  and  inasmucli  as  the  proposal  to  commit  suicide  had  been  first  suggested  by  him, 
it  was  considered  that  she  was  not  a  free  agent,  and  therefore  the  jury,  under  the  direc- 
tion of  the  judge  who  tried  the  case,  pronounced  a  verdict  of  not  guilty.  Anonymous 
referred  to  in  Reg.  v.  Allison,  8  C.  Sf  F.  418.  Maore,  754.  1  Russ.  on  C.  508. 

Hawkins  speaks  with  some  warmth  against  an  unaccountable  notion,  which  he  says 
prevailed  even  in  his  time,  that  every  one  who  kills  himself  must  be  non  compos  of 
course;  because  it  is  said  to  be  impossible  that  a  man  in  his  senses  should  do  a  thing  so 
contrary  to  nature  and  all  sense  and  reason.  But  he  argues,  that  if  this  doctrine  were 
allowable,  it  might  be  applied  in  excuse  of  many  other  crimes  as  well  as  tiiis;  as,  for 
instance,  that  of  a  mother  murdering  her  child,  which  is  also  against  nature  and  reason; 
and  this  consideration,  instead  of  being  the  highest  aggravation  of  a  crime,  would  make 
it  no  crime  at  all ;  for  it  is  certain  a  person  non  compos  mentis  can  be  guilty  of  no  crime. 
1  Hawk.  c.  27,  s.  3. 

If  one  encourages  another  to  commit  suicide,  and  is  present  abetting  him  while  he 
does  60,  such  person  is  guilty  of  murder  as  a  principal;  and  if  two  encourage  each 
other  to  murder  themselves,  and  one  does  so,  the  other  being  present,  but  failing  in  the 
attempt  on  himself,  the  latter  is  a  principal  in  the  murder  of  the  first;  but  if  it  be  un- 
certain whether  the  deceased  really  killed  himself,  or  whether  he  came  to  his  death  by 
accident  before  the  moment  when  he  meant  to  destroy  himself,  it  will  not  be  murder  in 
either.  R.  v.  Dyson,  R.  Sf  R.  C.  C.  523.  R.  v.  Allison,  8  C.  Sf  P.  418.  See  Post,  Chap. 
34,  Note. 


419  HISTORIA  PLACITORUM  CORON.^. 

CHAPTER  XXXII. 

OF   UEODANDS. 

Regularly  that  moveable  good,  that  brings  a  man  to  an  untimely 
death,  is  forfeit  to  the  king,  and  it  is  usually  granted  by  the  king  to 
his  almoner  to  distribute  in  charitable  uses. 

But  they  are  not  forfeit  till  the  death  be  found,  which  is  regularly 
by  the  coroner,  and  may  be  before  the  commissioners  of  goal-delivery, 
oyer  and  terminer,  or  of  the  peace,  if  omitted  by  the  coroner,  and 
hence  it  is,  that  these  goods,  as  neither  the  goods  of  felons  of  them- 
selves, felons  and  other  outlawed  persons,  cannot  be  claimed  by  pre- 
scription, because  there  must  appear  a  title  to  them  by  matter  of 
record,  before  they  are  forfeited. 

Upon  the  d6ath  of  a  man  by  misadventure,  &cc.  the  inquisition 
ought  to  inquire  of  the  goods,  that  occasioned  the  death,  and  the 
value  of  them,  and  the  Villafa,  where  the  n>ischance  happened, 
shall  be  charged  with  process  for  the  said  goods  or  their  value,  tho 
they  were  not  delivered  to  them,(«)  3  E.  3.  Cor.  298. 

And  this  is  the  reason,  that  in  every  indictment  of  murder,  man- 
slaughter, <5'C.  the  indictment  finding,  that  he  was  killed  with  a 
sword,  staff,  4'C.  ought  to  find  also  the  price,  viz.  5  solidorum,  be- 
cause the  king  is  entitled  to  that  instrument,  whereby  the  party  was 
killed,  or  the. value  thereof,  &nd  that  altho  it  were  the  sword  of 
another  man,  and  not  his,  that  gave  the  stroke,  Co.  P.  C.  57,  58.  tho 
this  doth  not  vitiate  the  indictment  as  to  the  offense  itself,  tho  the 
price  be  omitted. 

.    Deodands  are  of  two  natures:  1.  Such  as  do  mover e  ad 

r  420  ]  mortem.     2.  Such  as,  tho  they  are  qidescentia,  yet  occasion 

the  party's  death:  v/flfe  statute  4  E.  1.  de  officio  coronatoris. 

1.  Things  moving  to  death:  as  if  a  beast  kill  a  man,  8  E.  2.  Co- 
ron.  403.  if  a  man  be  cutting  of  a  tree,  and  the  tree  fall  upon  another 
tree  and  break  down  a  limb,  which  falls  upon  a  man  and  kills  him, 
botli  the  limb,  and  the  tree  that  fell,  are  deodands,  8  E.  2.  Co- 
ron.  398. 

If  a  man  be  driving  of  a  cart,  and  the  cart  fall  and  kill  a  man,  the 
cart  and  horses  are  a  deodand.  8  E.  2.  Coron.  388.  and  so  if  a  cart 
run  over  a  man  and  kill  him,  the  cart  and  horses  are  forfeit,  8  E.  2. 
Coron.  403.  3  E.  3.  Coron.  326,  342. ((^)  so  if  tlie  timber  that  hangs  a 
bell,  fall  and  kill  a  man,  the  timber  and  bell  are  both  forfeit. (c) 

(rt)  This  case  is  cited  from  an  Iter,  by  Fitzherbert,  who  adds  at  the  end  of  it,  quod 
mirum. 

(b)  A  cart  met  a  wag-jE^on  loaded  upon  the  road,  and  the  cart  endeavouring  to  pass  by 
the  wajTgon,  was  driven  ui)on  an  Iiiffh  bank  and  over-turned,  and  threw  a  person,  that  was 
in  the  cart,  just  before  tlic  wheels  of  the  waggon,  and  the  vvagfjTon  ran  over  him  and  liild 
him;  it  was  resolved  in  tliis  case  in  the  Jiorne  circuit  by  Pollexfen and  Gregory,  tiiat  the 
cart,  wapjjon,  loading,  and  all  the  horses  were  deodands,  because  they  all  moved  ad  Jftor- 
te7n.     1  Salk.  220. 

(c)  8  E.  2.  Corone  405.  vide  contra  Rex  versus  Crosse,  Sfc.  1  Sid.  207. 


HISTORIA  PLACITORUM  CORONA.  420 

If  a  man  in  watering  his  horse  is  drowned,  the  horse  is  a  deodand. 
8  E.  2.  Coron.  401. 

If  a  man  fall  into  the  water,  and  the  water  carry  him  under  the 
wheel  of  a  mill,  whereby  he  is  killed,  the  wheel  is  forfeited,  but  not 
the  miW.  8  E.  2.. Coron.  389. 

If  a  weight  of  earth  fall  upon  a  worker  in  a  mine  and  kill  him, 
the  weight  of  earth  is  forfeit,  not  the  whole  mine.  12  B.  2.  For- 
feiture  20, 

A  man  falls  from  his  horse  against  a  trunk,  whereof  he  dies,  the 
horse  is  forfeit  as  a  deodand,  but  not  the  trunk.  3  E.  3.  Coron.  341. 

And  yet  I  find  strong  authority,  that  in  that  case  the  horse  is  not 
forfeited,  unless  he  throw  his  rider. 

Clans.  5.  E.  3.  pai^t  2.  m.  9.  It  was  found  by  inquisition,  "  Quod 
Willielmus  Daventrise  in  parochia  beatse  Murix  Strond  in  com. 
Middlesex.,  cum  ad-aquavit  quendam  equum  magistri  sui,  dictusque 
Willielmus  redeundo  de  eodem  equo  per  infortunium  cecidit,  &  cum 
eodem  eqno  per  amicos  suos  semivivus  deductus  fnit  ad  hospitium 
praedicti  magistri  sui  apud  Fleelstreet  in  suburbio  London, 
&  ibidem  languidus  vixit  usque  occasum  solis,  quo  tempore  [  421  ] 
obiit  ex  casu  praedicto;  &  quod  prsedictus  equus  tempore 
casus  prsedicti  per  aliquem  vel  aliquam  non  fuit  perterritus,  per  quod 
habuit  occasionem  recalcitrandi. 

This  inquisition  being  removed  into  the  chancery  by  Certiorari, 
thereupon  it  was  adjudged  coram  rege  4*  concilio,  quod  equus  prse- 
diclus  lanquam  deodand'  regi  in  hoc  casu  non  debet  adjudicari,^\\^ 
thereupon  a  writ  issues  to  the  sheritls  and  coroners  of  London  recit- 
ing the  inquisition:  "  Jamque  dicta  certificatione  coram  nobis  &  con- 
cilio nostro  inspecta  &  plenius  examinata,  nobis  &.  dicto  concilio  nos- 
tro  videtur,  quod  equus  praedictus  tanquam  deodand'  nobis  in  hoc 
casu  non  debet  adjiidicari,"  commands  the  sheriff  and  coroners, 
"  quod  exactionem,  quam  Johanni  Bleburgh  (the  master  of  the  horse) 
vel  plegiis,  vel  manucaptoribus  suis  in  hac  parte  pro  equo  proedicto 
vel  ejus  pretio  nobis  tanquam  deodand'  reddend'  fecistis,  supersede- 
atis  omnino  &  districtionem  in  hac  parte  factam  sine  dilatione  relax- 
etis."    7!  R.  apud  Guildford  18  Novemb. 

Which  judgment  is  of  greater  weight,  than  any  above  cited,  and 
may  be  a  great  guide  in  cases  of  this  nature,  and  therefore  I  have 
cited  it  at  large:  1.  It  is  a  resolution  subsequent  to  all  those  judgments, 
that  are  above-raentiond,  for  the  last  of  them  is  the  3  E.  3.  and  this 
is  5  E.  3.  Again,  2.  It  is  a  solemn  judgment  given  in  Chancery  coram 
rege  S,'  concilio  upon  great  examination,  and  the  whole  case  stated  in 
the  inquisition,  and  every  man  knows,  that  understands  any  thing 
of  records  of  those  times,  that  coram  rege  8,"  concilio  was  the  king's 
legal  council,  namely  the  Chancellor,  Treasurer,  Keeper  of  the  Privy 
Seal,  justices  of  the  one  bench  and  the  other,  chancellor  and  barons 
of  the  Exchequer:  these  usually  met  in  chancery  upon  such  occasions 
under  the  style  of  co?iC27n/m. 

3.  It  is  a  judgment  given  by  the  king  and  council  against  the  for- 
feiture, the  whole  case  appearing  upon  the  inquisition,  which  is  of 


421  HISTORIA  PLACITORUM  CORONiE. 

greater  moment,  than  a  judgment  given  for  the  king,  because  given 
by  liimself  and  his  officers  against  his  own  interest. 

2.  Now  touching  deodands  of  things  not  moveable. 
[^422  ]  If  a  man  be  drowned  in  a  pit,  tho  the  pit  cannot  be  for- 
feited, the  coroner  may  charge  the  township  to  stop  the  pit, 
and  make  entry  thereof  in  his  roils;  and  if  it  be  not  done  before  the 
next  eyre  or  goal-dehvery,  the  township  shall  be  amerced.  8.  E.  2. 
Coron.  416. 

If  a  man  falls  from  a  hay-rick,  whereby  he  dies,  it  is  said  {noia, 
not  adjudged)  that  it  shall  be  forfeit.    3  E.  3.  Coron.  348. 

If  a  man  be  getting  up  a  cart  by  the  wheel  to  gather  plums,  and 
neither  the  cart  nor  horses  moving,  the  man  falls  and  dies,  neither  the 
cart  nor  horses  are  forfeit,  but  only  the  wheel.  8  E.  2.  Coron.  409. 

It  seems,  that  if  a  man  be  under  the  age  of  fourteen  years,  and  falls 
from  a  cart  or  horse,  it  shall  not  be  a  deodand,  because  he  was  not 
of  discretion  to  look  to  himself;  but  if  a  horse,  bull,  or  the  like  kill 
him,  or  if  a  cart  run  over  him,  there  it  shall  be  a  deodand  8  E.  2. 
Coron.  389.  StamforcTs  P.  Cor.  21.  a.  Co.  P.  C.  p.  57.  for  there  it 
shall  be  imputed  to  the  neglect  of  the  keeper  of  the  goods,  that  did 
the  mischief,  and  so  it  is,  if  a  tree  fall  upon  one  within  the  age  of 
discretion,  it  is  a  deodand. 

Touching  deodands  in  ships  or  boats,  these  things  are  observable: 

1.  If  a  ship  or  boat  be  laden  with  merchandize,  tho  it  fall  out  that 
a  man  be  killed  by  the  motion  of  the  ship  or  boat,  yet  the  merchan- 
dize are  no  deodand,  tho  it  be  in  the  fresh  water;  but  if  any  particular 
merchandize  fall  upon  a  party,  whereby  he  dies,  that  particular 
merchandize  shall  be  a  deodand,  and  not  the  ship.  Britton,  cap.  1. 
de  office  de  coroner,  §  13  <§'  14. 

2.  If  a  ship  or  vessel  be  sailing  upon  the  sea,  and  a  person  falls  out 
of  the  ship  and  is  drowned,  the  ship  is  no  deodand. 

By  the  antient  constitutions  of  the  admiralty  it  seems,  that  if  a  man 
were  drowned  upon  the  sea  by  falling  off  from  the  ship  under  sail, 
there  was  no  deodand  due,  nor  if  he  died  by  the  fall  of  a  mast  or  sail- 
yard,  or  otherwise;  but  indeed  in  the  articles  of  inquiry  in  the  court 
of  admiralty,  mentiond  in  the  black  book  of  the  admiralty,  one  of 
the  articles  is  to  inquire  of  them,  that  take  any  deodands, 
[  423  ]  besides  the  admiral  of  any  gold,  silver  or  jewels  found  upon 
any  man  slain  upon  the  sea,  drowned  in  the  sea,  or  slain 
with  a  mast  in  the  ship,  or  with  the  yard  of  the  ship,  or  with  any 
other  thing,  which  is  the  cause  of  the  death  of  any  man,  that  in  such 
case  appurtient  al  admiral  per  prendre  and  administre  per  I'alme,  ce 
quest  mort,  le  moiety,  &  I'autre  moiety  a  doner  al  feme  celui,  quest 
mort,ses  inlans,  freres  au  soers,sil  ad  aucunes:  but  certainly  this  never 
obtaind,  for  without  question  the  goods  of  the  deceased  were  no 
deodands,  but  only  the  goods  that  moved  to  his  death. 

Rot.  Par.  51  E.  3.  n.  73.  The  commons  pray,  Que  come  il  ad  un 
custome  use  parmy  cest  njalme,  que  si  ascun  home  ou  garson  eschie 
hors  de  ascun  niefe,  batelle,  ou  autre  vessel  en  le  mere,  haven,  ou 
auire  ewe,  &,  soil  pcrisse,  le  dit  vessel  ud  estre  forfeite  au  roy,  ou 


HISTORIA  PLACITORUM  CORONA.  423 

autres  seigneurs  de  franchises,  to  the  great  prejudice  of  mariners  and 
shipping,  and  tiierefore  pray,  que  nul  neife,  batell,  ne  autre  vessel 
soil  forfeitable  desormes  pur  le  cause  avant  dit. 

Resp.  En  le  mere  ne  doit  pes  deodand  estre  ajugge,  mes  quant  al 
ewe  fresh  le  roy  ent  ferra  sa  grace,  on  lui  pleyst. 

The  like  petitions  were  renewed  Rot.  Par.  1  H.  4.  n.  154.  1  H.  5. 
n.  35.  14  H,  6.  n.  2Q.  but  tiiey  obtained  no  other  answer,  than  that 
the  law  be  observed. 

Yet  that  answer  in  51  E.  3.  is  a  sufficient  declaration,  that  no  deo- 
dand is  to  be  upon  such  a  death  happening  upon  the  sea,  and  with 
this  difference  touching  the  forfeiture  of  a  ship  or  other  thing,  as 
deodands  in  mari  4"  in  aqua  diilci,  agrees  Bract.  Lib.  III.  cap.  5. 
p.  122,  and  cup.  17.  p.  136.  in  fine,  viz.  that  de  submersis  in  aqua 
dulci  batelli,  de  quibus  tales  submersi  fuerunt,  apprecieiUur,  sed  non 
in  mari,  nee  sunt  deodanda  ex  infortunio  in  mari. 

And  with  the  same  agrees  Fleta.  Lib.  I.  cap.  25,  §.  9.  de  submer- 
sis, si  de  molendino  ceciderit  vel  carecta  vel  de  batello,  quamvis  car- 
catis,  duni  tamen  in  acqua  dulci,  secus  quam  in  falsa,  and  goes  far- 
ther, but  too  far,  viz.  that  the  vessel  with  its  lading,  and  the  cart 
with  its  lading,  and  the  mill,  with  all  that  is  moveable  in  it,  are  deo- 
datids. 

But  now,  what  shall  be  said  the  sea  or  salt  water? 

My  lord  Coke,  ubi  supra,  viz.  p.  58.  saith,and  that  truly,  [  424  ~\ 
the  arm  of  the  sea  is  included  herein;  and  by  the  book  of 
22  Jissize,  j)l.  93.  so  far  as  the  sea  flows  and  reflows  is  an  arm  of 
the  sea. 

And  thus  far  of  deodands. 

I  shall  only  add  this  one  thing  more  relating  to  the  coroner's  office 
touching  those  that  come  to  a  violent  death  de  subito  mortuis:  if  the 
township  bury  the  body  before  the  coroner  be  sent  for,  the  township 
shall  be  amerced;  and  if  the  coroner  come  not  to  make  his  inquiry 
upon  notice  given,  he  shall  be  fined  in  eyre,  or  in  the  king's  bench, 
or  before  the  justices  of  goal-delivery. [1] 


[1]  By  deodand,  is  meant  whatever  personal  chattel  is  the  immediate  occasion  of  the 
death  of  any  reasonable  creature;  which  is  forfeited  to  the  king  to  be  applied  to  pious 
uses,  and  distributed  in  alms  by  his  high  almoner:  though  formerly  destined  to  a  more 
religious  purpose.  It  seems  to  have  been  originally  designed,  in  the  days  of  Catho- 
licity, as  an  expiation  for  the  souls  of  such  as  were  snatched  away  by  sudden  death, 
and  for  that  purpose  ought  properly  to  have  been  given  to  the  church ;  in  the  same 
manner  as  the  apparel  of  a  stranger,  who  was  found  dead,  was  applied  to  purchase 
masses  for  the  good  of  his  soul.  And  this  may  account  for  that  rule  of  law,  that  no  deo- 
dand is  due  where  an  infant  under  the  age  of  discretion  is  killed  by  a  fall  froin  a  cart,  a 
horse,  or  the  like,  not  being  in  motion;  whereas  if  an  adult  person  falls  from  thence,  and 
is  killed,  the  thing  is  certainly  forfeited.  For  the  reason  given  by  Sir  Matthew  Hale, 
(ante.  p.  422,)  seems  to  be  very  inadequate,  viz.  because  an  infant  is  not  able  to  take  care 
of  himsiflf;  lor  why  should  the  owner  save  his  forfeiture  on  account  of  the  imbecility  of 
the  child,  wiiich  ought  to  have  made  him  more  cautious  to  prevent  any  accident  of  mis- 
chief? The  true  ground  of  this  rule  seems  rather  to  have  been,  that  the  child,  by  reason 
of  its  want  of  discretion,  was  presumed  incapable  of  actual  sin,  and  tfierefore  needed  rio 
deodand  to  purchase  propitiatory  masses;  but  every  adult,  who  died  in  actual  sin,  stood 
in  need  of  such  atonement,  according   to  the  humane   belief  of  the  founders  of  the 


424  HISTORTA  PLACITORUM  CORONA. 

English  law.  1  Blac.  Comm.  300.  301.  and  note  (21)  in  2lst  Land.  Ed.  1844.  2  Steph. 
Comm.  5G5. 

The  origin  of  this  law  (of  deodands)  is  traced  back  to  the  oldest  periods  of  European 
religious  faith,  when  the  belief  in  the  efticacy  of.  masses  for  the  souls  of  the  dead  to  rescue 
them  from  the  pains  of  purgatory,  was  as  prevalent  and  as  thoroughly  rooted  in  the  mind 
of  all  Christendom,  as  the  disbelief  of  it  is  now  in  this  country.  It  was  in  tiiose  days  a 
general  practice,  naturally  flowing  from  this  belief,  among  tlie  classes  of  society  whose 
means  would  permit,  for  fliasses  to  be  said  for  the  souls  of  the  dead,  particularly  of 
those  who  died  on  the  field  of  battle,  or  otherwise  came  to  sudden  death,  and  were  sup- 
posed, therefore,  to  pass  from  this  world  witiiout  due  preparation,  and  without  absolution; 
and  to  this  practice  is  traced  tlie  law  of  dcodand.  Anciently,  it  seems,  when  any  person 
came  suddenly  by  his  death  by  the  accidental  agency  of  any  animate  or  inanimate  chat- 
tel, the  chattel  was  to  be  given  to  the  cliurch  for  masses  for  the  soul  of  the  deceased. 
Such  a  law  was  manifestly  a  wise  and  humane  one,  while  it  was  the  fervent  belief 
of  the  people  that  saying  of  such  masses  was  essential  to  the  eternal  welfare  of  the 
souls  of  deceased  persons;  for  in  all  times,  persons  of  the  poorer  sort  are  those  who  are 
most  exposed  to  death  by  accidents,  and  this  would  be  particularly  the  case  in  the  times 
of  wiiich  we  speak,  when  the  higher  classes  of  society  took  care,  by  their  continual  state 
of  warfare  and  mutual  destruction,  to  allow  little  room  for  accidental  death  among  them- 
selves,  so  that  but  for  the  law  which  devoted  to  the  procurement  of  masses  the  thing  that 
caused  accidental  death,  there  could  have  been  for  the  poor  no  provision  for  that  species  of 
spiritual  aid,  which  was  considered,  both  by  rich  and  poor,  as  much  an  essential  as  decent 
burial  is  at  this  day.  In  process  of  time,  however,  the  law  appears  to  have  been  perverted 
from  its  original  intention;  and,  while  the  ulterior  object  for  which  the  forfeiture  was 
inflicted,  appears  to  have  been  gradually  lost  sight  of,  the  forfeiture  itself  was  retained, 
but  in  favour  of  the  crown;  and  the  fruits  of  it  became  and  have  continued,  even  down 
to  this  day,  a  mere  source  of  revenue  to  the  crown. 

The  notion  upon  which  dendands  have  been  principally  levied  in  our  own  times,  and 
which  appears  indeed,  to  have  been  always  considered  as,  partly,  the  reason  of  the  law, 
has  been  that  they  operate  as  a  sort  of  penalty  on  carelessness,  tending  to  make  the 
owners  of  chattels  of  a  dangerous  character,  more  cautious  in  using  them.  Tiiis  is  simply 
an  attempt  to  fasten  some  extraneous  attribute  of  utility,  upon  a  process  in  itself  almost 
■wholly  denied  of  fitness  and  utility.  As  a  law  lending  to  enforce  caution,  it  is  manifest- 
ly one  sided;  for  the  forfeiture  of  the  thing  which  is  the  cause  of  a  man's  death  can,  of 
course,  operate  only  as  an  inducement  to  caution,  (if  indeed  it  does  operate  at  all)  upon 
the  owner  of  the  thing,  whose  caution  or  incaution  has,  in  general,  very  little  to  do  with 
the  matter;  while  upon  the  persons  who  expose  themselves  to  the  injurious  action  of  the 
thing,  it  can  have  no  effect;  yet  it  is  the  incaution  of  the  latter  class  much  more  than  of 
the  former,  that  is  the  cause  of  accidental  death.  9  Lond.  Jur.  49,  50.  P.  II.  See  also 
1  Blac.  Comm.  note  (22)  p.  302.  2lst  Ed. 

In  the  Parliamentary  Session  of  1845,  Lord  Campbell  introduced  a  "  Bill  to  abolish 
Deodand<,"  and  Lord  Lyttlelon  introduced  anotlier  entitled  "  An  Act  for  Compensating  the 
Families  of  Persoris  killed  by  Accidents;"(*)  neither  of  which  however  were  passed;  and 
the  Law  of  Deodands  in  England  still  rests  upon  its  ancient  principles  and  foundations.(t) 

(*)  This  Bill  has  now  (/4;)riZ  1847)  become  a  law, 9  4- 10  Vict.  c.93.2m  August,  18i6. 
The  provisions  of  the  law  are  as  follow: 

§  1.  An  action  to  be  maintainable  against  any  person  causing  death  through  neglect, 
&c.  notwithstanding  the  death  of  the  person  injured. 

(}  2.  Acti<m  to  be  for  the  benefit  of  certain  relations,  and  shall  be  brought  by  and  ia 
the  name  of  executor  or  administrator  of  the  deceased. 

§  3.  Only  one  action  shall  lie,  and  to  be  commenced  within  twelve  calendar  months, 

§  4.  Plaintiff  to  deliver  a  full  particular  of  the  person  for  whom  such  damages  shall  i>e 
claimed. 

§  5.  The  mode  of  construing  the  words  and  expressions  in  the  act. 

§  6.  The  act  to  take  efl'eot  immediately  after  passing,  and  not  to  apply  to  Scotlan/i. 

^  7.  The  act  may  he  amended  or  repealed  the  present  session  of  Parliament.  See  the 
Slat,  at  large  in  10 /i«;if/.  J(/r.  370. /^<.  2. 

(+)  When  this  note  was  written  {July  134fi)  such  was  the  law  of  England,  but  now, 
(April  1847)  the  learning  of  the  law  of  deodands  has  yielded  to  the  spirit  of  legal  reform, 
i'lie  lirilish  Parliament  passed  "An  Act  to  abolish  l)(M)dands,"  the  18th  August,  1846. 
Whereas  the  law  respecting  the  forfeiture  of  chattels  which  have  moved  to  or  caused  the 
death  of  man,  and  respecting  deodands,  is  unreasonable  and  inconvenient:  be  it  euacied, 


HISTORIA  PLACITORUM  CORONA.  404 

It  was  never  introduced  into  this  conntry,  except  in  a  very  infornaal  manner,  and  no  such 
title  as  Deodand  is  to  be  found  in  the  United  States  Digests. 

The  introduction  of  Lord  Campbell's  Bill,  together  with  some  recent  cases  has  caused 
the  learning  of  this  branch  of  the  law  to  be  much  investigated.  However  important  such 
investigations  may  liave  been  in  England,  they  are  liere  rather  matters  of  curious  anti- 
quarian law,  tlian  of  any  daily  practical  utility.  An  edition  o{  Hale^s  Pleas  uf  the  Crown 
would  nevertheless  be  incomplete  without  a  discussion  of  the  subject,  and  hence,  this  note 
has  been  prepared. 

"Tiie  principles  upon  which  they  (the  doctrines  of  deodands)  were  established,"  ob- 
serves  the  present  Lord  Chief  Justice  of  the  Queen's  Bench,  in  delivering  a  recent  and 
important  judgment,  {Reg.  v.  Polwart,  1  Q.  B.  824.)  -'are  so  entirely  matter  of  conjec- 
ture that  we  do  not  feel  called  upon  or  justified  at  the  present  day  to  extend  their  appli- 
cation, but  rather  to  limit  them  strictly  to  the  cases  in  which  we' find  them  established 
by  practice  and  recognised  by  law."  ^  .      '  ' 

It  will  be  convenient  to  notice  here  the  distinction  which  exists  between  the  forfeiture 
of  a  weapon  or  other  instrument  with  which  a  felony  has  been  ccmmilted,  and  the  value 
of  which  is  for  the  purpose  of  such  forfeiture  always  found  by  the  jury,  and  that  parti- 
cular species  of  forfeiture  which  is  designated  as  a  deodand.  To  these  two  kinds  of  for- 
feiture the  name  of  deodand  is  by  some  authors,  and  amongst  others  by  Sir  William 
Blackstone  {vol.  \.  p.  302.)  indifferently  applied,  but  according  to  the  weight  of  authority, 
it  is  strictly  applicable  in  those  cases  only  where  death  has  been  caused  accidentally,  and 
without  the  intervention  of  human  means.  Poster's  Crown  L.  266.  Indeed  it  is  quite 
clear  from  the  older  cases,  and  has  recently  been  expressly  decided  by  the  Court  of 
Queen's  Bench  that  the  coroner's  jury  has  no  power  to  lay  a  deodand  if  the  verdict 
returned  be  one  of  murder  or  manslaughter.  In  Reg.  v.  Polwart,  1  Q.  B.  818.  to  which 
we  here  allude,  the  coroner's  jury  returned  a  verdict  of  manslaughter  against  one  Joseph 
Polwart,  for  occasioning  the  death  of  one  Robert  Mason,  by  his  improper  and  negligent 
navigation  of  a  steamboat;  and  the  inquisition  further  found  that  "the  said  steamboat 
was  moving  to  the  death  of  the  said  Robert  Mason,  and  is  of  the  value  of  X800,  and  the 
property  of  and  in  the  possession  of  J.  W.  D.  The  late  Sir  William-  Follett  in  support 
of  the  rule  for  quashing  the  inquisition,  contended  that,  a  deodand  could  not  be  given 
in  a  case  of  felony,  and  that  consequently  so  much  of  the  inquisition  as  related  to  the 
deodand  ought  to  be  quashed,  as  was  done  in  Ex  Parte  Carrutkers,  2  Man.  ^  Ry.  397. 
A  deodand,  observed  the  learned  counsel,  is  only  where  death  happens  by  misadventure. 
The  instrument  of  death  may  indeed  be  forfeited  to  the  king  in  cases  of  felony,  but  that 
is  not  an  instance  of  deodand  properly  speaking;  and  he  cited  Slaund.  Pleas  del  Cor.  Lib.  I. 
e.  -U.fol.  20.  a.  3  Inst.  c.  9.  p  57.  Foxley's  case,  3  Rep.  109,  110.  Fost.  Cr.  Law,  265. 
Rex  V.  Rope,  2  Barnardislon,  R.  82.  111.  Com.  Dig.  Waife,  E.  1.  which  certainly  fully 
support  this  view  of  the  question.  Judgment  was  accordingly  given  that  so  much  of  the 
inquisition,  as  related  to  the  deodand  therein  mentioned  should  be  quashed.  "All  the 
authorities  in  our  law  books,  said  the  lord  Ch.  Justice,  treat  deodands  as  being  due 
where  the  death  is  by  misadventure;  and  no  one  instance  has  been  adduced  or  can  be 
found,  where  a  deodand  has  been  laid,  where  a  verdict  of  murder  or  manslaughter  has 
been  found."  The  same  learned  judge,  amongst  other  authorities  referred  to  the  following 
passage  from  lord  Coke,  (3  Inst.  c.  9.  p.  57.)  cittd  by  Sir  William  in  his  argument  p.  820, 
which  is  apposite  for  our  present  purpose;  "deodands"  he  describes  as  being  laid  when 
"  any  moveable  thing  inanimate,  or  beast  animate,  do  move  to  or  cause  the  untimely 
death  of  any  reasonable  creature  by  mischance  in  any  county  of  the  realm,  (and  not 
upon  the  sea  or  upon  any  salt  water,)  without  the  will,  offence  or  fault  of  himself  or  of 
any  person."  The  rule  of  law  as  finally  established  in  this  case  in  1  Q.  B.  818,  will  be 
found  very  material  in  guiding  us  to  a  correct  conclusion  as  to  the  utility  of  the  power 
at  present  possessed  by  a  coroner's  jury  of  imposing  deodands.  This  power,  it  will  be 
observed,  ceases  to  exist  whenever  the  degree  of  negligence  which  has  occasioned  death 
comes  within  the  definition  of  legal  guilt;  and  in  order  to  place  this  matter  in  the  clcar- 

&c.  that  from  and  after  the  first  of  September,  1846,  there  shall  be  no  forfeiture  of  any 
chattel  tor  or  in  respect  of  the  same  having  moved  to  or  caused  the  death  of  man;  and  no 
coroner's  jury  sworn  to  inquire,  upon  the  sight  of  any  dead  body,  how  the  decased  came 
by  his  death,  shall  find  any  forfeiture  of  any  chattel  which  may  have  moved  to  or  caused 
the  death  of  the  deceased,  or  any  deodand  whatsoever,  and  it  shall  not  be  necessary  in 
apy  indictment  or  inquisition  for  homicide,  to  allege  the  value  of  the  instrument  which 
caused  the  death  of  the  deceased,  or  to  allege  that  the  same  was  of  no  value,  10  Lond, 
Jur.  p. 


424  HISTORIA  PLACITORUM  CORONA. 

est  point  of  view,  we  shall  divide  cases  of  violent  death  into  three  classes :  1st.  where  the 
death  is  purely  accidental,  in  which  case  only  a  nominal  deodand  or  none  at  all  oug-ht  of 
course  to  be  imposed;  2d.  where  death  has  resulted  from  negligence  and  misconduct, 
not  amounting  in  contemplation  of  law  to  manslaughter,  in  which  class  of  cases  the 
power  of  awarding  deodands  may  undoubtedly  be  used  for  the  purpose  of  punishing  the 
guilty  party;  and  3d.  where  death  has  resulted  from  manslaughter  where,  as  we  have 
just  seen,  no  deodand  can  be  laid.  5  Land.  Law.  Mag.  191-193.  The  same  learned  writer 
in  the  5lh  vol.  of  the  Land.  Law.  Mag.  investigates  the  origin  and  history  of  deodands; 
(see  p.  194-198.)  and  gives  abstracts  of  both  lord  CampheWs  and  lord  Lyttleton's  Bills, 
(seep.  199-203.)  See  Hansard's  Pari.  Deb.  vol.  18.  p.  947.  Id.  vol.  19. p.  1053,  for  dis- 
cussions upon  the  respective  bills  before  referred  to. 

A  few  modern  cases  in  which  the  law  of  deodands  is  investigated  have  been  adjudica- 
ted and  are  here  cited.  Reg.  v.  Brownlow,  11  Ad.  Sf  El.  R.  119.  Reg.  v.  Tlie  Grand 
Junction  Railway,  Id.  123,  and  note,  (a)  Reg.  v.  Polwart,  1  Q.  B.  818.  Reg.  v.  The 
Great  Western  Railway  Company,  3  Id.  341.  Ex  parte  Caruthers,  2  Man.  Sf  Ry.  Rep. 
397.     Attorney  GenHv.  J'he  Easttrn  Counties  Railway  Company,  3  Railw,  Cas.  145. 


CHAPTER  XXXIII. 

OF  HOMICIDE,  AND  IT's  SEVERAL  KINDS,  AND  FIRST  OP  THOSE  CON- 
SIDERATIONS THAT  ARE  APPLICABLE,  AS  WELL  TO  MURDER  AS 
MANSLAUGHTER. 

Having  dispatched  the  business  of  suicidiiim  or  self-murder,  and 
per  infortunium  simplex,  I  come  now  to  consider  of  homicide,  as 
it  relates  to  others. 

And  this  is  of  three  kinds:  Purely  voluntary,  r/r.  murder  and 
manslaughter.  Purely  involuntary,  as  that  other  kind  of  homicide 
per  infortuni\im.  3.  Mixt,  partly  voluntary,  and  partly  involuntary, 
or  in  a  kind  necessary,  and  this  again  of  two  kinds,  viz.  inducing  a 
forfeiture,  as  se  defendendo,  or  not  inducing  a  forfeiture,  as,  1.  In 
defense  of  a  man's  house.  2.  Defense  of  his  person  against 
[  425  ~\  an  assault  in  vid  regid.  3.  In  advancement  or  execution  of 
justice,  and  according  to  this  distribution  I  shall  proceed. 

I  shall  begin  with  those  matters  considerable,  which  are  applicable 
as  well  to  homicide,  as  to  murder. 

Murd>;r  is  a  killing  of  a  man  ex  malitid  prsecogitatd;{2']  homicide 
is  killing  a  man  without  forethought  malice.[l] 

[1]  It  will  be  perceived  that  the  word  homicide  is  here  used  not  in  the  present  general 
sense  of  killing,  but  as  the  term  manslaughter  is  now  used. 

[2]  Coke's  definition  of  murder,  (3  Inst.  41,)  as  modified  by  Blarkstone,  is  so  accurate, 
comprehensive  and  elegant  that  it  has  been  universally  recognized  wherever  English 
law  prevails.  "  Murder  (says  Blarkstone,  4  Comm.  198)  is  when  a  person  of  sound 
memory  and  discretion  unlawfully  killcth  any  reasonable  creature  in  being  and  under 
the  king's  peace,  with  malice  aforethought,  cither  express  or  implied." 

This  is  substantially  the  dcHiiilion  of  this  crime  as  known  for  several  hundred  years  in 
England,  and  as  now  understood  in  the  United  States.  Wilkins's  Laws  of  the  Anglo- 
Saxnns,  480;  Glari.  L.  1 4,  c.  3 ;  Home's  il/n  ror,  4G;  Dait.  c.  145 ;  St.  52,  //.  3,  25 ;  Bracton, 
L.  3,  c.  4,  s.  1;  Britt.  c.  (J,  s.  I  ;  Fletn,  L.  1,  c.  30;  Kelham's  Norman  Diet.  "Murder;" 
CoweWs  Diet.  "Murder;"  BlounCs  Law  Dirt.  "Murder;"  Stauud.  b.  1,  c.  10;  1  Hoick. 
c.  31,  s.  3;  Vin.  Abr.  "Murder,"  a.  1;  2  McNally,  553;  Foster,  25ti;  1  East,  P.  C.  215; 


HISTORIA  PLACITORUM  CORONA.  425 

It  is  a  mistake  in  those,  that  think,  that  before  the  statute  of  Mar- 
lebridgc,  cap.  2G,  all  killing  of  a  man,  tho  per  infortunium  or  se  de- 
fendendo,  was  murder,  for  the  statute  saith,  that  murdrum  de  csetero 
non  adjudicetur  coram  justiciariis,  ubi  infortunium  tantummodo  ad- 
judicatur,  sed  locum  habet  murdrum  de  interfectis  per  feloniam  tan- 
turn,  &  non  aliter,  and  therefore  they  thought  that  before  this  statute 
a  man  should  be  hanged  for  killing  another  in  his  own  defense.. 
21  E.  3.  17.  b.{a) 

But  the  truth  is,  murdrum  in  this  case  was  but  an  amercement, 
that  was  antiently  imposed  upon  a  township,  where  the  death  of  a 
man  happened  ;(Z»)  and  this  appears  by  many  hundred  old  charters 
of  the  kings  of  England.,  especially  to  bishops  and  monasteries, 
whereby  it  was  granted,  that  they  and  their  possessions  should  be 
quit  de  murdro  Sf  latrocinio  among  divers  other  immunities,  where- 
by we  must  not  think  that  they  had  power  granted  them  to  commit 
murder  or  theft,  but  they  were  thereby  acquitted  of  those  common 
amercements,  usually  in  those  antient  times  imposed  in  eyre  upon 
vills  for  murder  and  theft  committed  there. 

To  make  up  the  crime  of  homicide  or  murder  there  must  be  these 
three  concurring  circumstances. 

I.  The  party  must  be  killed,  antiently  indeed  a  barbarous  assault 
with  an  intent  to  murder,  so  that  the  party  was  left  for  dead,  but  yet 
recovered  again,  was  adjudged  murder  and  petit  treason, 
15  E.  2.  Coron.  3S3.  but  that  holds  not  now,  for  the  stroke  [  426  ] 
without  the  death  of  the  party  stricken,  nor  the  death  with- 
out the  stroke  or  other  violence  makes  not  the  homicide  or  murder, 
for  the  death  consummates  the  crime. 

It  remains  therefore  to  be  considered,  to  what  intents  the  offense 
of  murder  or  manslaughter  relates  to  the  stroke  or  other  cause  of  the 
death,  and  to  what  purposes  it  relates  to  the  death  only. 

(a)  See  also  2  Co.  Instit.p.  148,  who  is  of  tliat  opinion. 

(b)  This  is  so  plain,  that  it  is  matter  of  surprize,  that  any  should  mistake  it;  the 
word  murdrum  usually  signifying  a  secret  killing  of  another,  so  that  the  murderer  was 
not  known,  for  if  the  murderer  was  known,  it  was  not  in  this  sense  murder;  as  if  the 
murderer  was  taken,  Sf  judicium  sustinuerit,  nullum  erit  murdrum,  quia  convincitur 
felunia,  or  if  the  murdered  person  lived  for  some  time  after  his  wounds,  it  was  no  murder 
because  he  might  discover  the  murderers,  the  meaning  of  which  is  not,  that  the  offender 
would  not  in  those  cases  be  liable  to  be  indicted  and  punished  for  murder,  but  that  the 
vill  or  township  would  not  in  such  cases  be  liable  to  any  amerciament.  Bract.  Lib.  HI. 
de  corona,  cap.  15.  p.  135.  a.  Wilk.  Le^.  Anglo-Sax.  p.  280.  vide  supra  p.  39.  in  notis,  vide 
fostea  cap.  35.     See  also  Kelynge,  121. 

Bac.  Abr.  "  Murder,"  A.;  Jacob's  Law  Diet.,  "  Murder;"  2  Ld.  Rnym.  1487;  Kehjnge^ 
1-21-127;  3  Chithj, 123;  3  Slarkie,  513;  1  Russell,  421 ;  ^rchbold,  818;  2  Deacon,  896; 
Roscoe,  5G2  ;  Davis,  Cr,  L  '92  ;  C.  J.  Parsons's  def.  {Selfridge's  Tr.  3,)  Brockenbo. 
rough,  J.  in  6  Randolph's  Va.  R.  723;  6  Mass.  R.  J39  ;  7  Dnn'e,  Abr.  c.  212;  State  v. 
Ze'ler,  2  Halsted's  R.  N.  Jersey,  242  ;  Comm.  v.  Drew,  4  Mass.  391;  The  People  v. 
Enoch,  13  Wend.  159;  Respublica  v.  Mulatto  Bob.  4  Dallas,  149;  Commonwealth  v.  Har. 
man,  4  Barr. ;  Commonwealth  v.  Mosler,  4  Barr. ;  U.  S.  v.  McGill,  1  Wash.  C.  C.  R.  463. 
Some  of  the  authorities  above  quoted  are  from  "A  Report  of  tlie  Penal  Code  of 
Massachusetts,  prepared  under  a  resolulion  of  the  Legislature,"  Boston,  1844.  To  the 
authors  of  this  very  able  and  comprehensive  work,  Messrs.  James  C.  Alvord,  Luther  .S 
Cus«iN<5,WiLLARD  PiiiLLirs,  and  Samuel  B.  Walcott,  the  editors,  are  largely  indebted 
for  the  notes  to  this  and  some  of  the  immediately  succeeding  chapters. 


426  HISTORIA  PLACITORUM  CORONA. 

If  a  man  gives  another  a  mortal  stroke,  and  he  lives  a  month, 
two  or  three,  or  more,  and  die  within  the  year  and  day,  the  title 
of  the  lord  by  eschete  to  avoid  mesne  incumbrances  relates  to  the 
stroke  given,  and  not  only  to  the  death.  Plowd.  Com.  263.  Dame 
Hale's  case. [3] 

If  a  man  give  another  a  mortal  stroke,  and  he  dies  thereof  within 
a  year  and  a  day,  but  mesne  between  the  stroke  and  the  death  there 
comes  a  general  pardon,  whereby  all  misdemeanors  are  pardoned, 
this  doth  pardon  the  felony  consequentially,  because  the  act,  that  is 
the  offense,  is  pardoned,  tho  it  be  not  a  felony  till  the  party  die. 
Ibid.  401.   CoWs  case. 

If  a  mortal  stroke  be  given  on  the  high  sea,  and  the  party  comes 
to  land  in  England  and  die,  the  admiral  shall  not  have  jurisdiction 
in  this  case  to  try  the  felon,  because  the  death  that  consummated  the 
felony,  happened  upon  the  land,  nor  the  common  law  shall  not  try 
him,  because  the  stroke,  that  made  the  offense,  was  not  infra  corpus 
comitatus,  5  Co.  Rep.  106.  h.  Sir  Henry  Constable's  case,  2  Co. 
Rep.  93.  a.  Biyigham^s  case,  Co.  P.  C.  p.  48.  and  Lade's  case, 
25  Eliz.  cited  there  to  that  purpose;  de  quo  alibi;  see  9.  Geo.  IV. 
c.  31,  s.  7,  «§'C. 

At  common  law,  if  a  man  had  been  stricken  in  one  county  and 
died  in  another,  it  was  doubtful  whether  he  were  indictable  or  tri- 
able in  either,  but  the  more  common  opinion  was,  that  he  might  be 
indicted  where  the  stroke  was  given,  for  the  death  is  but  a  con- 
sequent, and  might  be  found  tho  in  another  county,  9  E.  4.  48. 
7  H.  7.  8.  and  if  the  party  died  in  another  county,  the  body  was 
removed  into  the  county,  where  the  stroke  was  given,  for  the  coro- 
ner to  take  an  inquest  super  visum  corporis,  6  H.  7.  10.  but  now 
by  the  statute  of  2  <§'  3  E.  6.  cap.  24.  the  justices  or  coroner 
[]  427  3  of  the  county,  where  the  party  died,  shall  inquire  and  pro- 
ceed, as  if  the  stroke  had  been  in  the  same  county,  where 
the  party  died. 

On  the  other  side,  as  to  some  respects,  the  law  regards  the  death 
as  the  consummation  of  the  crime,  and  not  merely  the  stroke. 

If  a  party  be  kild  in  one  county,  the  coroner  super  visum  corporis 
might  at  common  law  inquire  of  all  accessaries  or  procurers  before 
the  fact,  tho  the  procurement  were  in  another  county,  20  H.  7.  Kelw. 
67.  b.  per  omnes  justiciarios  Anglise;  but  now  by  the  statute  of  2  (§• 
3  E.  6,  cap.  24.  the  indictment  and  trial  of  the  accessaries  shall  be  in 
the  county,  where  they  were  accessary,  viz.  procuring,  abetting  or 
receiving. 

If  a  party  be  mortally  wounded,  and  the  offender  taken  and  in  the 
custody  of  the  constable,  and  he  suffers  him  to  escape  before  the 


[3]  The  death  must  ensue  within  a  year  and  a  day  after  tho  stroke  received  or  cause  of 
deatli  adtiiinistcred,  in  the  compulation  of  wliich  tlie  whole  day  upon  which  the  hurt  was 
done  shall  he  reckoned  the  first.  .3  Initt.  l.'iS;  1  Ihiwk.  c.  31,  s.  9;  1  East.  P.  C.  343- 
344;  1  Russell,  428;  4  lil.  Com.  1!)7;  3  Chdly,  72G.  Sec  Nicholos'  case,  Foster,  64, 
where  it  is  doubled  whether  Cule\<s  case  warrants  the  rule  in  the  latitude  here  luid 
down. 


HISTORIA  PLACITORUM  CORONiE,  427 

wb.unded  person  die,  it  is  not  felony  in  the  constable,  tho  he  die  after 
within  the  year.   11  H.  A.  12.  Ploiv.  Com.  401.   Coie\  ca.se. 

If  a  stroke  be  given  the  Is't  of  January/,  and  the  party  die  the  1st 
of  March  following,  the  year  and  day  to  bring  an  appeal  is  to  be 
accounted  from  the  death,  and  not  from  the  stroke,  contrary  to  the 
opinion  of  Slamford  P.  C.  63.  a.  quod  vide  Co.  P.  C.  p.  53.  Sr  sur 
statute  de  Glouc.  cap.  9.,{c)  4  Co.  Rep.  42.  b.  Haydorfs  case,  SatUt. 
3  //.  7.  cap.  1. 

If  t-'?.  give  a  mortal  stroke  the  1st  of  January,  and  the  party  lives 
till  the  1st  o{  February,  and  then  dies  of  the  stroke,  the  conclusion  of 
the  indictment  is  best,  Et  sic  prsefatus  A.  <§'C.  modo  <§•  forma  prm- 
dictd  interfecit  Sf  murdravit,  because  it  applies  to  the  whole  case. 
2.  But  if  it  be,  Et  sic  praefafits  A.  prxdicto  1  Januarii  ipsum,  S^^c. 
interfecit  ^'  murdravit,  it  is  naught,  because  it  is  no  murder  till  the 
party  dies,  4  Co.  Rep.  42,  Haydoti's  case,  vide  ibidem  Katharine 
HuDie's  case.  3.  But  if  it  conclude,  Et  sic  prxfatus  A.  ipsiim,  <5'C. 
prsedicto  1  Februarii  interfecit  4*  murdravit,  it  is  good,  because 
then  the  murder  is  complete,  4  Co.  Rep.  47.  a.  Wigge's  case,  tho  in 
such  a  case  of  a  stroke  at  one  day  or  one  place,  and  a  death 
at  another  day  or  place,  the  best  conclusion,  and  that  which  [428  ] 
is  in  common  use  at  this  day  is,  Et  sic  pra3dictus  Ji.  ipsum, 
&c.  modo  &  forma  praedictis  interfecit  &  murdravit. 

And  thus  far  touching  the  relation  to  the  stroke  or  death. 

Now  what  shall  be  said  a  killing  and  death  within  the  year  and 
day. 

If  a  man  give  another  a  stroke,  which  it  may  be,  is  not  in  itself  so 
mortal,  but  that  with  good  care  he  might  be  cured,  yet  if  he  die  of 
this  wound  within  the  year  and  day,  it  is  homicide  or  murder,  as  the 
case  is,  and  so  it  hath  been  always  ruled,  3  Inst.  47, 

But  if  the  wound  or  hurt  be  not  mortal,  but  with  ill  applications 
by  the  party,  or  those  about  him,  of  unwholesome  salves  or  medi- 
cines tlie  party  dies,  if  it  can  clearly  appear,  that  this  medicine,  and 
not  the  wound,  was  the  cause  of  his  death,  it  seems  it  is  not  homicide, 
but  then  that  must  appear  clearly  and  certainly  to  be  so. 

But  if  a  man  receives  a  wound,  which  is  not  in  itself  mortal,  but 
either  for  want  of  helpful  applications,  or  neglect  thereof,  it  turns  to 
a  gangrene,  or  a  fever,  and  that  gangrene  or  fever  be  the  immediate 
cause  of  his  death,  yet,  this  is  murder  or  manslaughter  in  him  that 
gave  the  stroke  or  wound,  for  that  wound,  tho  it  were  not  the  imme- 
diate cause  of  his  death,  yet,  if  it  were  the  mediate  cause  thereof,  and 
the  fever  or  gangrene  was  the  immediate  cause  of  his  death,  yet  the 
wound  was  the  cause  of  the  gangrene  or  fever,  and  so  consequently 
is  causa  causoti. 

If  a  man  be  sick  of  some  such  disease,  which  possibly  by  course  of 
nature  would  end  his  life  in  half  a  year,  and  another  gives  him  a 
wound  (Jr  hurt,  which  hastens  his  end  by  irritating  and  provoking  the 
disease  to  operate  more  violently  or  speedily,  this  hastening  of  his  death 

(c)  2  Co.  Instit.  320. 
VOL.  I.— 37 


428  HISTORIA  PLACITORUM  CORON^E. 

sooner  than  it  would  have  been  is  homicide  or  murder,  as  tlie  case 
liappens,  in  him,  that  gives  the  wound  or  hurt,  for  he  doth  not  die 
simply  ex  visitatione  Dei,  but  the  hurt  that  he  receives  hastens  it,  and 
an  offender  of  such  a  nature  shall  not  apportion  his  own  wrong,  and 
thus  I  have  often  heard  that  learned  and  wise  judge  Justice  Rolle  fre- 
quently direct. [4] 

If  a  man  either  by  working  upon  the  fancy  of  another,  or 
[[429  3  possibly  by  harsh  or  unkind  usage  puts  another  into  such 
passion  of  grief  or  fear,  that  the  party  either  dies  suddenly, 
or  contracts  some  disease,  whereof  he  dies,  tho,  as  the  circumstances 
of  the  case  may  be,  this  may  be  murder  or  manslaughter  in  the  sight 
of  God,  yet  inforo  hximano  it  cannot  come  under  the  judgment  of 
felony,  because  no  external  act  of  violence  was  offered,  whereof  the 
common  law  can  take  notice,  and  secret  things  belong  to  God;  and 
hence  it  was,  that  before  the  statute  of  1  Jac.  cap.  12.  witchcraft  or 
fascination  was  not  felony,  because  it  wanted  a  trial,  tho  some  con- 
stitutions of  the  civil  law  make  it  penal. [5] 

If  a  physician  gives  a  person  a  potion  without  any  intent  of  doing 
him  any  bodily  hurt,  but  with  an  intent  to  cure  or  prevent  a  disease, 
and  contrary  to  tlie  expectation  of  the  physician  it  kills  him,  this  is  • 
no  homicide,  and  the  like  of  a  chirurgeon,  3  E.  3.  Coron.  163.    And 


[4]  Martin's  case,  5  C.  Sf  P.  128.  1  Russell,  429.  Archbold,  319.  Roscoe,  544-6. 
575,  576.  Johnson''s  case  h'fore  Halleck,  B.  Nisi  Priiis,  York  Assizes,  1827.  {Lewin's 
Crown  Cases,  164.)  seems  to  conflict  with  tlie  text.  The  prisoner  was  indicted  for  kill- 
ing the  deceased  while  in  a  state  of  intoxication  by  a  blow,  which  the  physician  testified 
might  not  have  produced  death  if  the  party  had  been  sober.  Halleck,  B.  directed  aa 
acquittal,  observing  that  "  where  the  death  was  occasioned  partly  by  a  blow  and  partly 
by  a  predisposing  cause,  it  was  impossible  to  apportion  the  operation  of  the  several 
causes,  so  as  to  be  able  to  say  with  certainty  that  the  deatii  was  immediately  occasioned 
by  any  one  of  them  in  particular."  It  seems  that  the  doctrine  thus  laid  down  and  ap- 
plied to  the  case  then  on  trial,  cannot  be  the  law.  It  is  entirely  at  variance  with  the 
principle  established  by  previous  authorities,  and  stated  in  the  text;  for  it  would  be  as 
applicable  to  any  other  predisposing  cause,  the  infirmity  of  age  and  sickness,  for  instance, 
as  that  of  intoxication.  Roscoe  questions  the  correctness  of  the  decision.  See  also, 
IHawk.c.  31.  s.  10.  1  East,  P.  C.  3i4.  3  Chitty,126.  I  Russell,  428.  Archbold,  319, 
Commonwealth  v.  Green,  1  Ashmead,  289. 

[5]  The  distinction  between  destroying  life  by  mechanical  means  or  bodily  injury,  and 
by  operating  upon  the  fears  or  passions,  appears  not  to  be  derived  from  any  difference  in  the 
criminal  nature  of  the  acts,  for  the  latter  in  many  cases  may  show  tlie  deeper  design  and 
darker  malignity,  but  from  the  difficulty  in  the  latter,  of  the  proof  connecting  the  act 
with  the  result,  and  the  dangerous  latitude  of  the  opposite  principle.  1  East,  P.  C.  225. 
3  Chitly,  726.  1  Russell,  425.  2  Starkie's  Ev.  514.  Roscoe,  570.  2  P.  Sf  F.  Med.  Juris. 
110,  n  (a  )  Report  on  the  Penal  Code  of  Massachusetts.  4  Bl.  Com.  197.  Chitti/s  nute  ' 
and  cases  there  cited. 

If,  however,  a  jierson  being  attacked  should  from  an  apprehension  of  immediate  vio- 
lence, an  ajiprehension  which  must  be  well  grounded  and  justified  by  the  circumstance?, 
throw  himself  for  escape  into  the  river,  and  be  drowned,  the  person  attacking  Jiiin  is 
guilty  of  murder.     Rejr  v.  Pitts,  1  Car.  Sf  Mars.  284. 

Or  if  words  or  signs  are  used  to  induce  an  act  resulting  in  death,  it  is  a  killing  by  the 
person  inducing  the  act;  as  if  a  blind  man  be  directed  to  a  precipice,  or  a  deadly  drOg 
be  recommended,  and  death  ensue  in  consequence,  it  is  a  killing.  Davis''  Cr.  L.  94.  Lit). 
P.  C.  437.  Evans'  case,  O.  B  Sep.  1812.  M.  S.  Baylei/,  .}.  in  1  Russell,  425.  Freeman's 
Case,  4  Mnsim,  505.  So  also  if  one  counsels  or  assists  another  to  commit  suicide.  Vaults 
Case,  4  Rep.  44  h.  1  Russell,  424-29.  4  Bl.  Com.  188.  3  Chitly,  726.  Dyson's  Case,  R.  Sf 
R.  523.    Bowcns'  Case,  13  Mass.  356.    Mass.  Com.  Rep.  p.  12. 


HISTORIA  PLACITORUM  CORONA.  429 

I  hold  their  opinion  to  he  erroneous,  that  think,  if  he  be  no  licensed 
chirurgeon  or  physician,  that  occasioneth  this  mischance,  that  then  it 
is  felony,  for  physic  and  salves  were  before  licensed  physicians  and 
chirurgeons;  and  therefore  if  they  be  not  licensed  according  to  the 
statute  of  3  H.  S.  cap.  1 1.  or  14  //.  8.  cap.  5.  they  are  subject  to  the  pe- 
nalties in  the  statutes,  but  God  forbid  that  any  mischance  of  this  kind 
should  make  any  person  not  licensed  guilty  of  nmrder  or  manslaughter. 
These  opinions  therefore  may  serve  to  caution  ignorant  people  not 
to  be  too  busy  in  this  kind  with  tampering  with  physic,  but  are  no 
safe  rule  for  a  judge  or  jury  to  go  by  :  we  see  the  statute  of  34  <§•  35 
H.  8.  cap.  8.  dispenseth  with  the  penalty  of  those  former  statutes,  as 
to  outward  applications  and  medicines  for  agues,  stone,  orc^strangury, 
which  may  be  administered  by  any  person,  and  the  preamble  of  the 
statute  tells  us,  that  if  none  but  licensed  chirurgeons  should  be  used 
in  many  cases,  many  of  the  king's  subjects  were  like  to  perish  for 
want  of  help. [6] 


[6]  Later  authorities  agree  with  Hale  in  these  points.  If  a  person,  whether  he  be  a 
regular  practitioner  or  not,  honestly  and  bona  fide  perform  an  operation  which  causes 
the  patient's  death,  lie  is  not  guilty  of  manslaughter.  Rex  v.  Van  Butchell,  3  C.  Sf  P.  G29. 
But  if  he  be  guilty  of  criminal  misconduct,  arising  from  gross  ignorance  or  criminal  in- 
attention,  then  he  will  be  guilty  of  manslaughter.  Rex  v.  Williamson,  3  C.  A-  P.  635. 
Rex  V.  Spiller,  5  V.  Sf  P.  333. 

When  the  defendant,  not  a  regular  physician,  killed  a  woman  by  an  application,  and 
the  jury  found  he  entertained  a  criminal  disregard  of  human  life,  he  was  convicted  of 
and  punished  for  manslaughter.  Rex  v.  Long,  4.  C,  Sf  P.  423.  Rex  v.  Senior,  R.  ^-  M. 
C.  C.  346.  In  Rex  v.  Webb,  1  M.  S(  Rob.4H).  Lord  Lyndhurst  laid  down  the  following 
rule; — "  In  these  cases  there  is  no  difference  between  a  licensed  physician  or  surgeoa 
and  a  person  acting  as  physician  or  surgeon,  without  license.  In  either  case,  if  a  party 
having  a  competent  degree  of  skill  and  knowledge  makes  an  accidental  mistake  in  his 
treatment  of  a  patient,  through  which  mistake  death  ensues,  he  is  not  thereby  guilty  of 
manslaughter;  but  if,  where  proper  medical  assistance  can  be  had,  a  person  totally  igno- 
rant  of  the  science  of  medicine,  takes  on  himself  to  administer  a  violent  and  dangerous 
remedy  to  one  labouring  under  disease,  and  death  ensues  in  consequence  of  that  danger- 
ous remedy  having  been  so  administered,  then  he  is  guilty  of  manslaughter.  If  I  enter- 
tained  the  least  doubt  of  this  position,  I  might  fortify  it  by  referring  to  the  opinion  of 
Lord  Ellenborough  in  R.  v.  Williuwson,  1  shall  leave  it  to  tiie  jury  to  say — first,  whether 
death  was  occasioned  or  accelerated  by  the  medicines  administered;  and  if  they  think  it 
was,  then  I  shall  tell  them,  secondly,  that  the  prisoner  is  guilty  of  manslaughter,  if  they 
think  that  in  so  administering  the  medicine  he  acted  with  a  criminal  intention  or  from 
very  gross  negligence."  In  the  case  of  R.  v,  Nancy  Simpson,  (reported  in  Willcock  on  the 
Law  relating  to  the  Medical  Profession,  Append.  2"27,)  the  prisoner  was  indicted  for 
manslaughter.  It  appeared  that  the  deceased,  a  sailor,  had  been  discharged  from  the 
Liverpool  Infirmary  as  cured  alter  undergoing  salivation,  and  that  he  was  recommended 
by  another  patient  to  go  to  the  prisoner  for  an  emetic,  to  get  the  mercury  out  of  his 
bones.  The  prisoner  was  an  old  woman,  who  resided  at  Liverpool,  and  occasionally  dealt 
in  medicines;  she  gave  him  a  solution  of  while  vitriol,  or  corrosive  sublimate,  one  dose 
of  which  caused  his  death;  and  she  said  she  had  received  the  mixture  from  a  person  who 
came  from  Ireland,  and  had  gone  back  again.  And  in  that  case  Mr.  Justice  Bayley  said, 
"I  take  it  to  be  quite  clear  tliat  if  a  person,  not  of  medical  education,  in  case  wiicre  pro- 
fessional aid  might  be  obtained,  undertakes  to  administer  medicine  which  may  have  a 
dangerous  effect,  and  thereby  occasions  death,  such  person  is  guilty  of  manslaughter. 
He  may  have  no  evil  intention,  and  may  have  a  good  one,  but  he  has  no  right  to  hazard 
the  consequences  in  a  case  where  assistance  may  be  obtained.  If  he  does  so,  it  is  at  his 
peril.  It  is  immaterial  whether  Uie  person  administering  the  medicine  prepares  it  or 
gets  it  from  another."  The  prisoner  was  convicted.  If  a  chemist's  apprentice  be  guilty 
of  negligence  in  delivering  medicine,  and  death  ensue  in  consequence,  he  is  guilty  of 


429  HISTORIA  PLACITORUM  CORONiE. 

But  if  a  woman  be  with  child,  and  any  giv^s  her  a  potion  to  de- 
stroy the  child  within  her,  and  she  takes  it,  and  it  works  so  strongly, 
that  it  kills  her,  this  is  murder,  for  it  was  not  given  to  cure 
r  4301  her  of  a  disease,  but  unlawfully  to  destroy  her  child  within 
her,  and  therefore  he  that  gives  a  potion  to  this  end,  must 
take  the  hazard,  and  if  it  kill  the  mother,  it  is  murder,  and  so  ruled 
before  me  at  the  assizes  at  Bury  in  the  year  1670. [7] 
■  And  certainly  if  that  opinion  should  obtain,  that  if  one  not  li- 
censed a  physician  should  be  guilty  of  felony,  if  his  patient  miscarry, 
we  should  have  many  of  the  poorer  sort  of  people,  especially  remote 
from  London,  die  for  want  of  help,  lest  their  intended  helpers  might 
miscarry.  • 

This  doctrine,  therefore,  that  if  any  die  under  the  hand  of  an  un- 
licensed physician,  it  is  felony,  is  apocryphal,  and  fitted,  I  fear,  to 
gratify  and  flatter  doctors  and  licentiates  in  physic,  tho  it  may,  as  I 
said,  have  its  use  to  make  people  cautious  and  wary,  how  they  take 
upon  them  too  much  in  this  dangerous  employment. 

If  a  man  have  a  beast,  as  a  bull,  cow,  horse  or  dog,  used  to  hurt 
people,  if  the  owner  know  not  his  quality,  he  is  not  punishable,  but 
if  the  owner  be  acquainted  with  his  quality,  and  keep  him  not  up 
from  doing  hurt,  and  the  beast  kill  a  man,  by  the  n.r\i\en\.  Jewish 
law(*)  the  owner  was  to  die  for  it,  Exod.  xxi.  29.  and  with  this 
seenis  to  agree  the  book  of  3  E.  3.  Coron,  311.  Slam/.  P.  C.  17.  a. 
wherein  these  things  seem  to  be  agreeable  to  law. 

1.  If  the  owner  have  notice  of  the  quality  of  his  bea^t,  and  it  doth 
any  body  hurt,  he  is  chargeable  with  an  action  for  it. 

"2.  Tho  he  have  no  particular  notice,  that  he  did  any  such  thing 
before,  yet  if  it  be  a  beast,  that  is  /eras  naturss,  as  a  lion,  a  bear,  a 
wolf,  yea  an  ape  or  monkey,  if  he  get  loose  and  do  harm  to  any  per- 
son, the  owner  is  liable  to  an  action  for  the  damage,  and  so  I  knew 
it  adjudged  in  Andrew  Baker^s  case,  whose  child  was  bit  by  a  mon- 
key, that  broke  his  chain  and  got  loose.  See  May  v.  Burdette, 
10  Lond.  Jiir.  ' 

3.  And  therefore  in  case  of  such  a  wild  beast,  or  in  case  of  a  bull 
or  cow,  that  doth  damage,  where  the  owner  knows  of  it,  he  must  at 

(*)  Vide  supra,  p.  3.  in  notis. 

manslaugfhler.  {Tessymond^ s Caso,  1  Lew.  169.)  SeeRegina  v. Spilling,  2  M,  S(  Rob.  107. 
Rex  V.  Simpson,  1  Lrwin.  C.  C.  172.  Rex  v.  Ferguson,  1  Lewin.  C.  C.  181.  Coin.y. 
Chauncey,  2  Ashniead,  227. 

In  Massachusetts,  it' one  assuming  to  be  a  physician,  however  ignorant  of  the  medical 
art,  administers  to  his  j)aticnt  remedies  which  result  in  liis  deatli,  he  is  not  guilty  of  man- 
slaughter, unless  he  has  so  much  knowledge  or  probable  information  of  the  fatal  tendency 
of  his  prescriptions,  as  to  raise  a  presumption  of  obstinate,  wilful  rashness.  Com'm,  v. 
Thompson,  6  Mass.  134.  When  however,  such  person  has  opportunity  to  know  of  the 
injurious  cfiecls  of  his  remedies,  and  then  administers  them,  it  would  be  competent  for 
the  jury  to  find  him  guilty  of  manslaugiitcr,  even  though  he  might  not  have  intended  any 
bodily  harm  to  his  patient.  Viid. 

[7]  If  a  woman  take  poison  with  intent  to  procure  a  miscarriage  and  dies  of  if,  she  is 
guilty  of  self-murder,  whether  she  was  (juick  with  child  or  not:  and  a  person  who  fur- 
nished her  with  the  poison  lor  that  purpose,  will  if  absent,  be  an  accessary  before  the 
fact.  Rex  v.  Russell,  1  M.  C.  C.  R.  356. 


HISTORIA  PLACITORUM  CORONA.  430 

his  peril  keep  him  up  safe  from  doing  hurt,  for  tho  he  use  his  dili- 
geuce  to  keep  him  up,  if  he  escape  and  do  harm,  the  owner  is  Uable 
to  answer  damages. 

4.  But  as  to  the  point  of  felony,  if  the  owner  have  notice 

of  the  quaUty  of  the  ox,  4'C.  and  use  all  due  diligence  to  [  431  ] 

keep  him  up,  yet  the  ox  breaks  loose  and  kills  a  man,  this 

is  no  felony  in  the  owner,  but  the  ox  is  a  deodand.  • 

5.  But  if  he  did  not  use  that  due  diligence,  but  thro  negligence  the 
beast  goes  abroad  after  warning  or  notice  of  his  condition,  and  kills 
a  man.  I  think  it  is  manslaughter  in  the  owner. 

6.  But  if  he  did  purposely  let  him  loose,  or  wander  abroad  with 
design  to  do  mischief,  nay  tho  it  were  with  design  only  to  fright 
people  and  make  sport,  and  it  kill  a  man,  it  is  murder  in  the  owner, 
and  I  have  heard,  that  long  since  at  the  assizes  held  at  SL  ^^Ibans 
for  Hertfordshire  it  was  so  ruled,  and  the  owner  hanged  for  it,  but 
this  is  but  an  hearsay. [8] 

If  a  man  lay  poison  to  kill  rats,  and  a  man  casually  take  it,  where- 
by he  is  poisoned,  this  is  no  felony,  but  if  a  man  lay  poison  to  the 
intent  that  B.  should  take  it,  to  be  poisoned  therewith,  and  C.  by 
mistake  take  it,  and  is  poisoned  to  death,  this  is  murder,  tho  it 
were  not  intended  for  him.  Bait.  cap.  93.{d)  9  Co.  Rep.  81.  b. 
Jlgnes  Gore's  case,  Plowd.  Com.  474.    Sander's  case. 

And  altho  the  party  take  the  poison  himself  by  the  persuasion  of 
another  in  the  absence  of  the  persuader,  yet  it  is  a  killing  by  the  per- 
suader, aiKi  he  is  principal  in  it,  tho  absent  at  the  taking  of  it.  4  Co. 
Rep.  44.  h.  Vaiix's  case. 

if  vi.  gives  poison  to  B.  intending  to  poison  him,  and  B.  ignorant 
of  it,  gives  it  to  C.  a  child,  or  other  near  relation  of  ^1.  against 
whom  he  never  meant  harm,  and  C.  takes  it  and  dies,  this  is  murder 
in  A.  and  a  poisonmg  by  him,  Plowd.  Com.  474.  a.  Bait,  cap  93. 
but  B.  because  ignorant,  is  not  guilty. 

\i  A.  gives  purging  comfits  to  B.  to  make  sport,  and  not  to  hurt 
him,  and  B.  dies  thereof,  it  is  a  killing  by  A.  but  not  murder,  but 
manslaughter.    Bait.  cap.  93. [9] 

There  are  several  ways  of  killing,  1.  By  exposing  a  sick  or  weak 
person  or  infant  unto  the  cold  to  the  intent  to  destroy  him,  2  E.  3. 
18.  b.  whereof  he  dieth.  2.  By  laying  an  impotent  person  abroad, 
so  that  he  rAay  be  exposed  to  and  receive  mortal  harm,  as 
laying  an  infant  in  an  orchard,  and  covering  it  with  leaves,  [  432  3 
whereby  a  kite  strikes  it,  and  kills  it.  6  Eliz.  Crompt.  de  Pace 

(d)  New  Edit.  1727.  cap.  U5.  p.  471. 

[8]  4  Bl.  Com.  197.  3  C.  S^  P.  320.  Palm.  554.  1  Russell,  622.  Roscoe  571. 

[9]  If  ^.  give  a  poisoned  apple  to  B.  intending  to  poison  her,  and  B.  ignorantly  give 
it  to  a  child  who  eats  it  and  dies,  this  is  murder  in  A.  but  no  otrence  in  B.  and  this 
though  A.  being  present  at  the  time  endeavoured  to  dissuade  B.  from  giving  it  to  the  child. 
2  Plowden  Com.  473,  edition  Dublin,  1792,  and  authorities  there  collected.  S.  P.  Crompt. 
Jus.  23.  pi.  24.  Lamb  Just.  lib.  2.  cap.  l.fol.  242.  Dalt.  JuM.  cap.  145.  s.  8.  3  Inst.  51. 
1  H'lwk.  P.  C.  79.  2  Hawk.  P.  C,  316.  Lane,  47.  Jenk.  290.  1  Finch,  63.  3  Bacon's 
Abr.  663.  670.  The  notes  to  the  case  in  2d  Plowden,  at  great  length,  refer  to  all  the 
ancient  law. 


432  HISTORIA  PLACITORUM  CORONA. 

24.  DaJf.  cap.  93.{e)  3.  By  imprisoning  a  man  so  strictly  that  he 
dies,  and  therefore  where  any  dies  in  gaol,  the  coroner  onght  ta  be 
sent  for  to  inquire  the  manner  of  his  death.  4.  By  starving  or  fa- 
mine. 5.  By  wounding  or  blows.  6.  By  poisoning.  7.  By  laying 
noisome  and  poisonous  filth  at  a  man's  door,  to  the  intent  by  a  poi- 
sonous air  to  poison  him,  Mr.  Ballon,  cap.  93.  out  of  Mr.  Cook's 
rdlUding.     8.  By  strangling  or  suffocation. [10] 

(e)  iVew  'Edit.  cap.  145.  p.  469. 

.  [10]  Killing  is  causing  the  extinction  of  life  by  means  of  some  bodily  injury.  Living-. 
ston''s  Penal  Code,  4.  2  Starkie  Ev.  51'S.  It  may  be  effected  by  violence  immediately 
directed  against  the  person,  or  constructive  and  consequent  on  the  act  of  the  accused. 

1.  By  striking.  Thompson'' s  case.  Moody,  139.  Kelley^s  case,  ibid.  113.  Whitens  case, 
6  Binnei/,  181.    Moslcr^s  case,  4  Barr. 

2.  By  stabbing.  T/iiirston''s  case,  1  Lei\  91.  1  Keble,  454,  455.  Edward's  case, 
6  C.  Sf  P.  401.     Rex  v.  Hay  ward,  6  C.  Sf  jP.  157.  '■ 

3.  By  shooting.  Hiip:hes'  case,  5  C.  S(  P.  126.  Tawle's  case,  3  Price,  145.  Self, 
ridcre's  case,  Boston,  1806.  Pamphlet.     Daily's  case,  4th  Perm.  Law  Journal,  150. 

4.  By  drowning.  Dyson's  case,  R.  tSf  R.  523.  Green's  case,  2  St.  Trials,  214.  Har- 
grove's edition.     Harman's  case,  4  Barr. 

5.  By  sutfocation.  Rex  v.  Tye,  1  Russell,  470.  R.  Sf  R.  C.  C.  435.  Rex  v.  Waters, 
1  Car.\^  P.250.    Rex  \:  Caulkin,  5  Car.  Sf  P.  \'2l. 

6.  By  strangling.  Tye's  case,  R.  Sf  R.  345.  Huggins' case,  3  C.  Sf  P.  414,  Caulkin's 
case,  5  C.  Sf  P.  121.     Rex  v.  Shaw,  6  C.  Sf  P.  372. 

7.  By  crushing.  Hale's  Sum.  MS.,  53. 

8.  By  bruising.     Hale's  Sum.  MS.,  53. 

9.  By  poisoning.  Saunders'  case,  Plowd.  474.  Gove's  case,  9  Rep.  81.  Anon.  Kely. 
52.    Vaux's  case,  4  Rep.  44.  a.     Reg.  v.  Sandys,  1  Car.  ^-  M.  345. 

From  the  secrecy,  malice  and  deliberation  attendant  on  killing  by  poison,  it  hasahvajrs 
been  esteemed  homicide  of  the  higlicst  nature.  Tlie  laws  of  most  countries  affix  to  it 
peculiar  guilt.  The  statute  22  Hen.  VIII.  c.  9.  made  it  high  treason,  and  punished  it  by 
boiling  to  death.  Tiie  Statute  1  Ed.  VI.  c.  12.  repealed  this  act.  In  most  of  the  United 
States,  killing  by  poison  is  declared  by  statute  to  be  murder  of  the  first  degree.  See 
notes  to  chap.  36. 

10.  Giving  one  excessive  quantities  of  spirits  to  drink,  whereby  death  is  occasioned. 
R.  V.  Packard  et  al.  1  C.  Sf  M.  236. 

11.  By  starving.     Beale's  case,  1  Leon.  327.  Squire's  case,  1  Russel,  426. 

12.  By  corrupting  the  air.  2  Paris  tSf  Fonblanque's  Medical  Jurisprudence,  question 
as  to  whether  death  can  be  produced  in  tiiis  way.  However  tiiis  may  be  as  to  the  exter- 
nal atmospliere,  it  is  undoubtedly  true  that  death  may  be  caused  by  noxious  gases  under 
many  circuiiistanccs.  To  confine  a  person  in  a  close  room  filled  with  the  fumes  of  char- 
coal;  to  compel  or  induce  the  respiration  of  air  deprived  of  the  qualities  necessary  to 
support  life,  or  impregnated  with  noxious  qualities,  might  cause  death,  and  the  party 
would  be  criminally  responsible.     In  Paris  many  such  cases  have  occurred. 

13.  ]5y  communicating  infection.     See  ;?os<,  432. 

14.  15y  putting  one  to  death  at  his  request,  or  advising  it.  Rex  v.  Sawyer,  1  Russ, 
424.  Rex  V.  Dyson,  R.  Sf  R.  C.  C.  523.  Reg.  v.  Allison,  8  C.  Sf  P.  418.  Comm-  v. 
Bowen,  13  il/ass.  359. 

15.  By  laying  a  trap  or  pitfall.  4  Bl  Com,  35.  1  Russell,  617. 

16.  By  letting  loose  a  dangerous  animal.  Palmer,  545.  4  Bl.  Com.  197.  1  Russell, 
622.    Roscoe,  511.  ante,  p.  4:i0. 

17.  (Compelling  one  to  do  an  act  likely  to  cause,  and  which  docs  cause  death.  1  Rus. 
sell,  425-6.    Archbold,3VJ.    Ro.'^coe,  511.    Rex  v.  Evans,  \  Russ.  426. 

18.  The  lilic,  the  compulsion  being  by  threats  only.  Evans  Case,  O.  B.  Sep.  1812. 
M.  S.  Buyh-.y,  J.  1  Russoll,  425. 

19.  Death  in  obedience  to  the  command  of  one  having  authority.  In  Freeman' s  case, 
4  Mason,  505,  tlie  prisoner,  being  the  master  of  a  ship,  coni|)elled  a  sailor  in  a  state  of 
great  exhaustion  and  debility,  known  to  the  master,  to  go  aloft,  and  the  seaman  foil  from 
the  mast  and  was  drowned.     The  jirisoncr  was  convicled  of  manslaughter. 

20.  By  pretended  medical  treatment.     Com.  v.   Thompson,  6  Mass,  134.     Com.  v. 


HISTORIA  PLACITORUM  CORON.E.  432 

Moriendi  mille  Jigurx. 

A  man  infected  with  the  plague,  having  a  plague-sore  running 
upon  him,  goes  abroad,  this  is  made  felony  by  the  statute  of  1  Jac. 
cap.  31,  but  is  now  discontinued ;(/)  but  what  if  such  person  goes 

( /")  It  was  made  at  first  to  continue  no  longer,  than  until  the  end  of  the  first  session 
of  the  next  parliament. 

Ckauncey,  2  Ashmead,  227.  Rex.  v.  Van  Butchell,  3  C.  ^  P.  629.  Rex.  v.  Williamson, 
3  C.  .^  P.  635.  Rex  v.  Spiller,  5  C.  ^  P.  333.  Rex.  v.  Long,  4  C.  S(  P.  423.  Rex  v. 
Senior.  R.  Sf  M.  C.  C.  346.  Rex  v.  Webb,  4  M.  S(  Rob.  410.  Regina  v.  Spilling,  2  M. 
if  Rob.  207.    Re^  v.  Simpson,  1  Lewin,  C.  C.  172.    Rex  v.  Ferguson,  1  Lewin,  C.  C181. 

21.  By  attempt  to  procure  abortion  or  destroy  an  unborn  child.  See  anle,  note  1,  p.  430. 
R£x.  V.  Russell,  1  M.  C.  C.  R.  356. 

22.  By  exposure  or  neglect  of,  or  cruelty  towards  one  incapable  of  self-protection.  When 
a  parent,  guardian,  master  or  other  person,  having  the  custody  of  a  child,  apprentice  or 
servant  ot  tender  years,  or  of  a  sick  man,  insane  man  or  idiot  or  other  person,  exposes 
him  to  a  situation  of  manifest  danger  to  life,  or  is  guilty  of  gross  neglect  or  cruelty  to- 
wards him,  and  dciith  ensue  in  consequence,  it  is  a  killing  by  such  parent,  guardian, 
master  or  person  having  custody.  3  Inst.  53.  1  Russell,  426.  Archbold,  319. 

The  following  cases  illustrate  this  division  of  tiie  modes  of  killing.  When  a  parent 
places  a  helpless  infant  in  a  hog-stye,  where  it  is  devoured,  1  East,  P.  C.  225.  or  exposes 
it  on  a  rock  at  sea,  from  which  it  is  washed  away,  Helen  Wilson's  case,  1  Hume,  279.  or 
leaves  it  in  a  remote  iield,  where  it  is  destroyed  by  wild  beasts  or  trodden  upon  by  cattle, 
1  Hawk.  c.  31,  s.  5.  or  exposes  it  where  it  may  perish  with  cold  or  famine  or  want  of  care, 
BeaWs  case,  1  Leon.  327.  Margaret  Smith's  case,  1  Hume,  279.  or  a  parent,  master  or 
guardian  refuses  to  furnish  a  child  or  apprentice  of  tender  years  or  infirm  health,  to 
whom  he  owes  support,  with  sutficient  or  proper  sustenance,  or  lodging  or  clothing, 
Squire's  case,  1  Russell,  426,  note.  Self's  case,  1  Leach,  137.  Gould's  case,  Salkeld,  361. 
Ridley's  case,  2  Camp.  650.  Elizabeth  Key's  case,  1  Hume,  279.  or  wiien  'municipal 
officers,  to  avoid  a  charge,  shift  a  child  from  town  to  town,  without  sufficient  food,  or 
clothing,  or  other  care.  Rainier,  545.  Holloicay's  case,  1  Russell,  425.  or  one  carries  his 
sick  father,  against  his  will,  abroad  in  an  inclement  season,  1  Haick.c.  31,  s.  5.  or  where 
a  jailor  confines  a  prisoner  in  the  same  cell  with  an  outrageous  madman  unbound,  or 
with  a  person  dying  with  a  malignant  or  contagious  disease ;  or  thrusts  him  into  a 
loathsome  and  pestilential  dungeon,  knowing  tlie  danger,  and  death  follows  in  conse- 
quence, it  is  killing  by  the  jailor;  or  if  one  procures  an  idiot  or  lunatic  to  kill  another, 
it  is  a  killing  by  the  person  so  procuring  the  idiot  or  lunatic  to  do  the  homicide.  In  all 
these  cases,  or  others  of  like  nature,  if  the  duty  violated  be  plain  and  the  danger  apparent, 
and  death  ensue  in  consequence  of  the  act  or  neglect,  it  is  a  criminal  killing.  Mass.  Com. 
Rep.  9,  10,  11,  refers  to  Britt.  c.  11.  s.  9.  Stamf.  36.  3  Inst.  52.  Palmer,  548.  1  Hawk. 
c.  31.  sec.  10.  (note.)  Foster,  322.  Huggin's  case,  2  Ld.  Raymond,  1574.  2  Strange,  882. 
Castell  V.  Bambridge,  2  Strange,  856.  1  East,  P.  C.  226-331.  1  Russell,  459.  Bacon's 
Abridgment,  Murder  A.  See  cases  of  Huggins,  Bambridge,  and  Atkins,  State  Trials, 
(Hargrove)  vol.  17.  quarto,  310-452.  et  seq.  (folio)  vol.  9.  107.  146.  182.  et  seq.  Regina 
V.  Walters,  1  Car.  Sf  M.  164.  Regina  v.  Pitts,  1  Car.  Sf  M.  284.  Rex  7.  Squires,  1  Russ. 
C.  Sf  M.  426.  Rex  v.  Cheesman,  1  C.  Sf  P.  454.  Regina  v.  Marryatt,  8  C.  &  P.  425. 
Rex  v.Self,  1  Leach,  C.  C.  137. 

The  early  writers  laid  down  the  law  to  be,  that  it  was  a  killing  to  take  away  the  life 
of  another  by  swearing  deliberately,  falsely  in  a  capital  trial.  (Mirror,  c.  l,s.  9;  Britt. 
c.  5.  s.  2;  Bract.  B.  3,  c.  4,  and  see  1  Hawk.  c.  31,  s.  10.)  But  lord  Coke  says,  (3  Inst. 
48,)  "  It  is  not  holden  for  murder  at  this  day;"  and  such  seems  now  to  be  the  weight  of 
authority.  The  latest  case  on  this  point  is  that  of  McDaniel  and  others,  reported  in 
Foster,  132,  and  1  Leach,  44.  The  defendants  were  convicted,  but  judgment  was  re- 
spited, in  order  that  the  question  of  law  might  be  fiilly  considered.  But  the  attorney 
general  declined  to  prosecute  the  case  further,  and  the  prisoners  were  discharged  from 
the  indictment.  The  opinion  of  Sir  Michael  Foster  was  against  the  indictment.  Sir 
William  Blackstone,  however,  says,  (4  Com.  196,)  that  tiie  attorney  general  did  not  press 
the  point  on  account  of  prudential  reasons,  and  not  from  any  apprehension  that  it  was 
not  maintainable;  and  in  1  East's  P.  C.  333,  it  is  added,  that  lord  Mansfield  had  said. 


432  HISTORIA  PLACITORUM  CORONA. 

abroad,  to  the  intent  to  infect  another,  and  another  is  thereby  infect- 
ed and  dies?  whether  this  be  not  murder  by  the  common  law  miglit 
be  a  question,  but  if  no  such  intention  evidently  appear,  tho  de 
facto  by  his  conversation  another  be  infected,  it  is  no  felony  by  the 
common  law,  tho  it  be  a  great  misdemeanor,  and  the  reasons  are, 

1.  Because  it  is  hard  to  discern,  whether  the  infection  arise  from 
the  party,  or  from  the  contagion  of  the  air,  it  is  God's  arrow,  and 

2.  Nature  prompts  every  man,  in  what  condition  soever,  to  pre- 
serve himself,  which  cannot  be  well  without  mutual  conversation. 

3.  Contagious  diseases,  as  plague,  pestilential  fevers,  small  pox, 
4'C.  are  common  among  mankind  by  the  visitation  of  God,  and  the 
extension  of  capital  punishments  in  cases  of  this  nature  would  multi- 
ply severe  punishments  too  far,  and  give  too  great  latitude  and  loose 
to  severe  pnnishments.[ll] 

II.  the  second  consideration,  that  is  common  both  to  murder  and 
manslaughter,  is,  who  shall  be  said  a  person,  the  killing  of  whom 
shall  be  said  murder  or  manslaughter. 

If  a  woman  be  quick  or  great  with  child,  if  she  take, 
r  433  3  or  another  give  her  any  potion  to  make  an  abortion,  or  if 
a  man  strike  her,  whereby  the  child  within  her  is  killed,  it 
is  not  murder  nor  manslaughter  by  the  law  of  England,  because  it 
is  not  yet  iri  reruin  natura,  tho  it  be  a  great  crime,  and  by  the  judi- 
cial law  of  Moses{g)  was  punishable  with  death,  nor  can  it  legally  be 
made  known,  whether  it  were  killed  or  not,  22  E.  3.  Coron.  263.  so 
it  is,  if  after  such  child  were  born  alive,  and  baptized,  and  after  die 
of  the  stroke  given  to  the  mother,  this  is  not  homicide.  1  E.  3.  23.  b. 
Coron.  146.  [12] 

(g)  Exod.xx'u  22. 


that  the  opinions  of  several  judges,  including  himself,  were  strongly  in  favour  of  the  in- 
dictment. Most  of  the  more  recent  writers,  however,  seem  to  incline  to  the  opinion  that 
a  person  cannot  be  indicted  for  murder  in  procuring  another  to  be  executed  by  falsely 
charging  him  with  a  crime  of  whicli  he  was  innocent.  1  East,  P.  C.  333.  See  4  Bl.  Com. 
196-7.  Chilb/snote.  I  Russell,  421.  3  ChiUy,126.  Archbuld,  319.  Roscoe,  513.  10  Am. 
Jurist,  261.  The  Gothic  laws  punished  this  offence  with  death,  (4  Bl.  Cum.  196,  quotes 
Stcirnh,  de  jure  Goth.  L.  3,  c.  3.  See  also  D.  48,  8,  1 ;  and  Folhier''s  Pandects,  48,  8, 
No.  .3,  by  which  it  would  seem  that,  in  tlie  Roman  law,  tlie  judge  also,  if  he  were 
bribed,  and,  under  the  influence  of  the  bribe,  improperly  condemned  a  man  who  suffered 
death  in  consequence,  was  guilty  of  murder. 

[II]  Cas<eZ/'s  case,  5'ira.  856.  Hug^in's  case,  S^ra.  882.  Bantridge's  case,  ^  Haf. 
State  Trials,  folio  17.  fjuarto  4.52.     2  Paris  Sf  Fon.  Med.  Jur. 115.  See  ante,  p.  432,  note. 

[12]  The  person  killed  innst  be  "a  reasonable  creature  in  being,  and  under  the  king''8 
peace"  at  the  time  of  the  killing.  Therefore  to  kill  an  alien,  a  Jew,  or  an  outlaw,  who  are 
all  under  the  king's  peace  and  protection,  is  as  much  murder  as  to  kill  the  most  regular 
born  Englishman,  except  he  be  an  alien  enemy  in  time  of  war.  To  kill  a  child  in  its 
mother's  womb  is  now  no  murder.    4  Bl.  Com.  197,  198.  3  Inst.  50. 

Aitliough  to  kill  a  child  in  its  mother's  womb  is  no  murder,  yet  if  the  child  be  hajn 
alive,  and  die  by  reason  of  the  potion  or  bruises  it  received  in  the  womb,  it  is  murder  in 
the  person  who  administered  or  gave  them.  3  Inst.  50.  1  Hawk.  c.  31.  s.  IG.  so  if  a  mor- 
tal wound  be  givon  to  a  child  wliilst  in  the  act  of  being  born,  for  instance,  upon  tlie  head 
as  soon  as  the  head  appears,  and  before  the  child  has  breathed,  it  may  be  murder,  if  the 
child  is  afterwards  born  alive  and  dies  thereof      Hex  v.  Senior,  1  Moody,  C.  C.  346. 

To  justify  a  conviction  on  an  indictment  charging  a  woman  with  the  wilful  murder  of 


HISTORIA  PLACITORUM  CORONA.  433 

But  if  a  man  procure  a  woman  with  child  to  destroy  her  infant, 
wlien  born,  and  the  child  is  born,  and  the  woman  in  pursuance  of 
that  procurement  kill  the  infant,  this  is  murder  in  the  mother,  and 
the  procurer  is  accessary  to  murder,  if  absent,  and  this,  whether  the 
child  were  baptized  or  not.  7  Co.  Rep.  9.  Dyer  186. [13] 

The  killing  of  a  man  attaint  of  felony,  otherwise  than  in  execution 
of  the  sentence  by  a  lawful  officer  lawfully  appointed,  is  murder 


a  child  of  which  she  was  delivered,  and  which  was  born  alive,  the  jury  must  be  satisfied, 
affirnnitivcl}-,  tliat  the  whole  body  was  brought  alive  into  the  world ;  and  it  is  not  sufficient 
that  the  child  had  breathed  in  the  progress  of  the  birth.  Rex  v.  Powlton,5  Car.  Sf  P.  329. 

If  a  child  has  breathed,  before  it  is  born,  this  is  not  sufficiently  life  to  make  the  killing 
of  the  child  murder.  There  must  be  an  independent  circulation  in  the  child,  or  the  child 
cannot  be  considered  as  alive,  for  this  purpose.    Rex  v.  Enoch,  5  Car.  Sf  P.  539. 

If  a  child  has  been  wholly  produced  from  the  body  of  its  mother,  and  she  wilfully,  and 
of  nialice  aforethought,  strangle  it,  while  it  is  alive,  and  has  an  independent  circulation, 
this  is  murder,  although  the  child  be  still  attached  to  its  mother  by  the  umbilical  cord. 
Reg.  V.  Trilloe,  1  Car.  ^^-  M.  650. 

An  unskilful  practitioner  of  midwifery  wounded  the  head  of  a  child,  before  the  child 
was  perfectly  born.  The  child  was  afterwards  born  alive,  but  subsequently  died  of  this 
injury  : — Held,  manslaughter,  although  the  child  was  in  ventre  sa  mere,  at  the  time  when 
the  wound  was  given.     Rex  v.  Senior,  1  M,  C.  C.  R.  344;  1  Lewin,  C.  C.  183.  n. 

A  girl  was  indicted  for  the  murder  of  her  child,  aged  sixteen  days.  She  was  proceed- 
ing from  Bristol  to  Llandogo,  and  was  seen  near  Tintern,  with  the  child  in  her  arms,  at 
6  P.  M.  Slie  arrived  at  Llandogo  between  8  and  9  P.  M.  without  the  cliild.  The  body 
of  a  child  was  afterwards  found  in  the  river  Wye,  near  Tintern,  which  appeared  not  to 
be-tlie  child  of  the  prisoner: — Held,  that  the  prisoner  must  be  acquitted,  and  that  she 
could  not,  by  law,  either  be  called  upon  to  account  for  her  child,  or  to  say  where  it  was, 
unless  there  was  evidence  to  show  that  her  child  was  actually  dead.  Rig.  v.  Hopkins, 
8  Car.  4"  P.  591. 

A  prisoner- was  charged  with  the  murder  of  her  new  born  child,  by  cutting  ofF  its 
head  : — Held,  that  in  order  to  justify  a  conviction  for  murder,  the  jury  must  be  satisfied 
tliat  the  entire  child  was  actually  born  into  tlie  world  in  a  living  state  ;  and  that  the  fact 
of  its  having  breathed  is  not  a  decisive  proof  that  it  was  born  alive,  as  it  may  have 
breathed,  and  yet  died  before  birth.    Rex  v.  Sellis,  7  Car.  ^  P.  850. 

If  a  child  was  slrangled  intentionally,  while  it  was  connected  with  the  mother  by  the 
umbilical  cord,  but  after  it  was  wholly  produced  into  the  world,  qutBve,  whether  this 
would  be  murder?    Rex  v.  Croutchly,  7  Car.  Sf  P.  814. 

An  indictment  charged  that  the  prisoner,  being  big  with  child,  did  bring  forth  the 
child  alive,  and  afterwards  strangle  it: — Held,  that  the  jury  ought  not  to  convict  on  this 
indictment,  unless  they  were  satisfied  that  the  child  was  wholly  born  when  it  was 
strangled.  Ibid. 

The  child  must  be  actually  wholly  in  the  world  in  a  living  state,  to  be  the  subject 
of  a  charge  of  murder ;  but  if  it  is  wholly  born  and  is  alive,  it  is  not  essential  that  it 
should  have  breathed,  but  the  jury  must  be  satisfied  that  the  child  was  wholly  born  into 
the  world,  at  the  time  it  was  killed,  or  they  ought  not  to  convict  the  prisoner  of  murder. 
Rex  V.  Brain,  6  Car.  Sf  P.  349. 

If  a  child  be  killed  after  it  has  wholly  come  forth  from  the  body  of  the  mother,  but  is 
still  connected  with  her  by  means  of  the  umbilical  cord,  it  seems  that  such  killing  will 
be  murder.    Reg.  v.  Reives,  9  Car.  ^  P.  25. 

On  a  charge  of  child  murder,  it  appeared  that  the  child  must  have  died  before  it  had 
an  independent  circulation: — Held,  that  as  the  child  had  never  had  an  independent  cir- 
culation, the  charge  of  murder  could  not  be  sustained.  Reg.  v.  Wright,  9  Car.  Sf  P.  754. 
1  Ritss.  on  Crimes,  485,  4S6,  487. 

In  this  connexion  it  may  be  added,  that  it  is  a  general  rule,  that  no  person  should  be 
found  guilty  of  murder,  unless  the  body  of  the  deceased  is  found  ;  but  this  rule  must  be 
taken  rather  as  a  caution  than  as  a  maxim  never  to  be  departed  from.  3  C/iit.  C.  L.  738. 

[13]  Where  one  counsels  a  woman  to  kill  her  child  when  it  shall  be  born,  who  after- 
wards dotii  kill  it  in  pursuance  of  such  advice,  he  is  an  accessary  to  tiie  murder.  1  Huwh. 
c,3l,s.l7. 


433  HISTORIA  PLACITORUM  CORONA. 

or  manslaughter,  as  the  case  happens,  and  tho  there  was  some 
doubt,  whether  the  kiUingof  a  person  outlawed  of  felony  were  homi- 
cide or  no,  2  ^.3.  6.  yet  it  is  homicide  in  both  cases.  21  Jlssiz.  41. 
Coron.  203. 

If  a  person  be  condemned  to  be  hanged,  and  the  sheriff  be- 
head him,  this  is  murder,  and  the  wife  may  have  an  appeal.  35  H. 
6.  5S  (A) 

If  a  man  he  attaint  in  ?i  prsemunire  whereby  he  is  put  out  of  the 
king's  protection,  the  killing  of  him  was  held  not  homicide,  24  H.  8. 
B.  Coron.  197.  But  the  statute  of  5  Eliz.  cap.  \{i)  hath  now  put 
that  out  of  question,  declaring  it  to  be  unlawful. (A^) 

If  a  man  kill  an  alien  enemy  within  this  kingdom,  yet  it  is 
felony,  unless  it  be  in  the  heat  of  war,  and  in  the  actual  exercise 

thereof.[14] 
f  434  ]       III.   The  third  inquiry  is,  who  shall  be  said  a  person 
killing. 

An  infant  under  the  age  of  fourteen,  years  in  presumption  of  law 
is  supposed  without  discretion,  and  therefore  prima  facie  he  cannot 
commit  murder  or  manslaughter,  but  being  indicted  thereof,  upon 
not  guilty  pleaded  he  ought  to  be  found  not  guilty. 

But  if  he  be  above  that  age,  in  presumption  of  law  he  is  of  dis- 
cretion, and  may  be  guilty. 

But  if  he  be  under  the  age  of  fourteen,  yet  if  upon  circumstances 
it  can  appear,  that  he  hath  discretion,  he  may  be  convict  of  felony. 
3  H.  7.  i.  b.  12.  «.(/)[15] 

(7i)  See  also  Co.  P.  C.  p.  52.  queere,  in  case  of  treason,  (where  the  sentence  is,  that  the 
party  shall  be  hanged,  but  not  till  he  be  dead,  S(c.)  if  the  king  remit  all,  but  the  hanging, 
whether  it  be  not  murder  in  the  sheriff  to  hang  him  till  he  be  dead  ? 

(t)  hi  fine. 

(k)  See  Coron.  203.  wliere  it  is  declared  felony  to  kill  one  outlawed  for  felony. 

(I)   Vide  supra,  p.  27. 

[14]  4  Bl  Com.  178.  Bracton,  folio  120.  1  Hawk.  P.  C.  70.  Dalton,  c.  150.  Finch, 
i.  31.     3  Inst.  52. 

[15]  Infants  under  the  age  of  discretion  ought  not  to  be  punished  by  any  criminal 
prosecution  whatever.  1  Hawk.  P.  C.  2.  By  the  ancient  Saxon  law,  the  age  of  twelve 
years  was  established  for  the  age  of  possible  discretion,  and  tlie  age  of  fourteen  as  that 
when  lie  became  completely  liable  as  one  arrived  at  years  of  discretion.  4  Bl.  Com. 
23.  The  presumption  is  as  stated  in  the  text;  a  presumption,  however,  which  may  be 
negatived  eitlier  to  involve  those  under,  or  to  excuse  those  over  that  age :  for  the  capa- 
city of  doing  ill  or  contracting  guilt,  (says  Blackstone,  4  Com.  23.)  is  not  so  much 
measured  by  years  and  days,  as  by  the  strength  of  tiie  delinquent's  understanding  and 
judgment.  Under  seven  years  of  age,  however,  an  infant  cannot  be  guilty  of  feluny, 
{Mirror,  c/t.  4.  s.  16.)  but  at  eight  years  lie  may,  (Bait.  c.  147.)  if  it  be  shown  that  he  had 
knowledge  and  understanding,  and  felonious  intent.  There  are  many  cases  in  which 
infants  under  the  age  of  fourteen  have  been  capitally  convicted.  Foster,  72.  In  a 
comparatively  late  case  in  Frifrland,  the  ancient  doctrines  were  reaffirmed:  it  was 
ruled  that  if  a  child  more  than  seven,  and  under  fourteen  years  of  age,  is  indicted  for 
felony,  it  will  be  left  to  the  jury  to  say  whether  the  prisoner  at  the  time  of  the  offence, 
had  a  guilty  knowledge  that  he  or  she  was  doing  wrong.  The  presumption  of  law 
being  tliiit  a  child  of  that  age  has  not  such  guilty  knowledge,  unless  the  contrary  be 
proved  by  the  evidence.  Rex  v.  Owm,  4  Car.  S(  P.  236.  A  boy  of  the  age  of  twelve 
years  and  five  months  may  be  convicted  on  his  own  confessions  of  the  crime  of  murder 
and  executed.  The  capacity  to  commit  a  crime,  necessarily  supposes  the  capacity  to 
confess  it.    Stale  v.  Guild,  5  Halst.  IS.  J.  1G3.    See  ante,  p.  26,  note. 


HISTORIA  PLACITORUiM  CORONA.  434 

If  a  man  be  non  compos  mentis,  and  kill  a  man,  he  is  to  plead 
not  guilty,  and  shall  be  acquitted,  and  is  not  driven  to  purchase  a 
pardon,  tho  antienlly  it  was  so  used.  StumfariTs  P.  C.  16.  b.  ^- 
libros  ibi. 

And  the  same  law  it  is  of  a  lunatic,  that  kills  a  man  in  the  time  of 
his  lunacy;  but  if  it  be  in  those  intervals,  when  he  hath  his  under- 
standing, then  he  is  a  felon,  sed  de  his  svpru.  p.  31. [16] 

If  there  be  an  actual  forcing  of  a  man,  as  if  ^.  by  force  take  the 
arm  of  5.  and  the  weapon  in  his  hand, and  therewith  stabs  C.  where- 
of he  dies,  this  is  murder  in  ,d.  but  B.  is  not  guilty,  Dalt.  cap.  93. 
p.  242. (w)  Plowd.  Com.  19.  a. 

But  if  it  be  only  a  moral  force,  as  by  threatning,  duress,  or  impri- 
sonment, (S'c.  this  excuseth  not. [17] 

Kfeme  covert  is  in  law  under  the  coercion -of  her  husband,  and 
therefore,  if  she  commit  larciny  or  burglary  together  with  her  hus- 
band, the  husband  is  in  law  guilty,  but  regularly  the  wife  is  not 
guilty.  Stamf.  26.  a.  Coron.  160.  Dalt.  cap.^104.  p.  267.{n)  [IS] 

But  if  she  commit  murder,  or  treason,  or  manslaughter,  it  is  no 

(m)  New  Edit.  cap.  145.  p.  473.  (n)  New  Edit.  cap.  157.  p.  503. 


[16]  Murder  or  manslaughter  cannot  be  committed  by  an  idiot,  lunatic,  or  infant, 
unless,  indeed,  he  show  a  consciousness  of  doing  wrong,  and  of  course  a  di.scretion,  or 
discernment  between  good  and  evil.  4  Black.  Com.  195.  1  Haick.  c-  1.  But  if  any 
person   procure    an  idiot,  &,(;.  to   murder    another,  the   procurer    is   guilty  of  murder. 

1  Hawk.  c.  31,  s.  7.  Or  if  he  aid  and  abet  him  knowing  that  he  entertains  mischievous 
designs.    Reg  v.  Tyler,  8  C.  Sf  F.  61G.     See  ante,  p.  37,  note. 

■  [17]  A  fear  of  death,  well  grounded,  may  excuse  the  doing  of  some  acts  which,  under 
other  circumstances,  would  be  criminal;  as  joining  rebels,  or  continuing  with  them  : 
but  an  apprehension,  liowcver  strong  and  well  founded,  of  having  property  wasted  or 
destroyed,  or  of  suffering  any  other  mischief  not  endangering  the  person,  will  afford  no 
excuse.  Rex  v.  Gordon,  1  East,  P.  C.  71.     Rex  v.  McGrowther,  1  East,  F.  C.  71. 

A.,  who  was  insane,'  collected  a  number  of  persons  together,  who  armed  themselves, 
having  a  common  purpose  of  resisting  the  lawfully  constituted  authorities:  A.,  having 
declared  that  he  would  cut  down  any  constable  who  came  against  him.  A.,  in  the  pre- 
sence of  C  and  D.,  two  of  the  persons  of  his  party,  afterwards  shot  an  assistant  of  a  con- 
stable, who  came  to  apprehend  A.  under  a  warrant :  Lord  Denman  held,  that  C.  and  D. 
were  guilty  of  murder,  as  principals  in  the  first  degree,  and  that  any  apprehension  that  C, 
and  D.  had  of  personal  danger  to  themselves  from  A.,  was  no  ground  of  defence  for  con- 
tinuing with  him  after  he  had  so  declared  his  purpose;  that  it  was  no  ground  of  defence 
that  A.  and  his  party  had  no  distinct  or  particular  object  in  view  when  they  assem- 
bled  together  and  armed  themselves;  and  that  the  apprehension  of  personal  danger  does 
imt  furnish  any  excuse  for  assisting  in  doing  any  act  which  is  illegal.  Reg  v.  Tyler, 
8  Car.  4"  P.  616. 

[18]  Although  a  wife  cannot  commit  larceny  in  the  company  of  her  husband,  for  it  is 
deemed  his  coercion  and  not  her  voluntary  act,  yet,  if  she  do  it  in  his  absence,  and  by 
his  mere  command,  she  is  then  punisiiable  as  if  she  were  sole;  and  the  husband,  it  is 
said,  may  be  accessary  to  the  wife.  Anon.  2  East,  F.  C.  559.  When  a  felony  is  com- 
mitted by  the  wife  in  the  presence  of  the  husband,  it  is  a  presumption  only  and  not  a  con- 
clusion of  law,  that  it  is  done  under  his  coercion.  Rex  v.  Hughes,  2  Lewin,  C.  C.  229. 
See  Conolh/s  case,  2  Lewin,  C.  C.  229.  Rex  v.  Morris,  R.  <^-  R.  C.  C.  270.  1  Russell, 
18.     Rex  V.  Dix,  1  Russell,  16.     Rex  v.  Archer,  R.  t^-  M.  C.  C.  143.     Rex  v.  Morris, 

2  Leach,  C.  C.  1096.  Rex  v.  Atkinson,  1  Russell,  20.  Rex  v.  Hassall,  2  Car.  i^  P. 
434.  Res  V.  Woodward,  8  Car.  S^-  P.  561.  Rex  v.  Knight,  1  Car.  ^y  /'.  1 16  Rix  v. 
Price,  8  Car.  <^  P.  19.  Reg  v.  Cruse,  8  Cur.  4-  P.  341.  2  M.  C.  C.  R.  53.  4  BL 
Com.  28.    See  ante,  p.  45,  note. 


434  HISTORIA  PLACITORUM  CORONA. 

plea  to  say  she  did  it  by  coercion  of  her  husband,  but  she  is  guilty, 
tho  committed  with  her  husband.  Bait.  lbid.\\%^ 


[  435  ]  CHAPTER  XXXIV. 

CONCERNING  COMMANDING,  COUNSELLING,  OR  ABETTING  OF  MURDER 
OR  MANSLAUGHTER. 

Altho  this  title  may  seem  more  proper  under  the  title  oi  principal 
and  accessaries,  yet  because  it  relates  to  the  inquiry,  who  shall  be 
said  a  murderer  or  manslayer,  and  is  common  in  some  respects  to 
both  crimes,  I  shall  take  up  the  consideration  thereof  here'. 

He  that  counsels,  commands,  or  directs  the  killing  of  any  person, 
if  he  be  absent,  is  an  accessary  to  murder  before  the  fact. 

In  case  of  poisoning,  he  that  counsels  another  to  give  poison,  if 
that  other  doth  it,  the  counseller,  if  absent,  is  but  accessary  before 
Coke  P.  C.p.  49.  Sir  Thomas  Ouerbitr^'s  case.(a) 

But  he  that  actually  gives  or  lays  the  poison  to  the  intent  to  poi- 
son, tho  he  be  absent,  when  it  is  taken  by  the  party,  yet  he  is  princi- 
pal, and  this  was  Weston's  case, (6)  Co.  P.  C.  p.  49.  in  Sir  Thomas 
Overbury^s  case,  and  4  Co.  Rep.  44.  b.  Vaux's  case. 
.  In  case  of  murder,  he  that  counselled  or  commanded  before  the 
fact,  if  he  be  absent  at  the  time  of  the  fact  committed,  is  accessary 
before  the  fact,  and  tho  he  be  in  justice  equally  guilty  with  him  that 
commits  it,  yet  in  law  he  is  but  accessary  before  the  fact,  and  not 
principal.  , 

If  ^^.  commands  B.  to  beat  C.  and  he  beats  him  so  that  he  dies 
thereof,  it  is  murder  in  B.  and  *^.  if  present,  is  also  guilty  of  the 
oflense,  if  absent,  he  is  accessary  to  murder.  Dalt.  cap.  93.(c)  Plowd. 
Com.  475.  b.  Co.  P.  C.p.  51.  2>  E.  3.  Coron.  314. 

\i  Ji.  counsel  B.  to  poison  his  wife,  B.  accordingly  obtains' 
[  436  '\  poison  from  ./^.  and  gives  it  to  his  wife  in  a  roasted  apple, 
the  wife  gives  it  to  a  child  of  B.  not  knowing  it  was  poison, 
who  eats  it  and  dies,  this  is  murder  in  B.  tho  he  intended  nothing  to 
the  child.  Plowd.  Com.  474.  Saunder''s  case:  and  so  it  is,  if  an  apo- 
thecary send  a  potion  to  the  wife,  and  the  husband  mingle  poison 
with  it,  and  upon  some  dislike  of  the  physic  the  apothecary  is  sent 
for,  who  to  justify  it  to  be  wholesome  voluntarily  eats  part  of  it,  and 

(a)  See  Slate  Tr.  Vol.  I.  p.  331.  (c)  New  Edit.  cap.  145.  p.  472. 

(Jb)  State  Tr.Vol.  I./).  313. 

[19]  4  Bl.  Com.  28.  1  Hawk.  I'.  C.  3.  Wif*e  not  guilty  of  any  breach  of  duty,  in  ne- 
glectinw-  to  provide  an  uppreiifice  of  her  Iiusband  with  sufHcicnt  food  and  necessaries, 
whereby  he  died,  as  she  was  only  the  servant  of  her  husband.  Rex  v.  Squire,  1  Rus- 
sell,  16. 


HISTORIA  PLACITORUM  CORONA.  436 

is  poisoned  and  dies,  this  is  murder  in  B.  tho  the  apothecary  was 
never  intended  to  be  hurt,  but  voluntarily  look  it.  9  Co.  Rep.  81. 
Ji^nes  Gore^s  case. 

But  in  this  case,  he  who  was  absent,  and  counselled  the  poisoning 
of  the  wife,  is  not  accessary  to  the  murder,  because  as  to  him  the 
command  shall  not  be  construed  further,  than  as  to  the  person  in- 
tended by  him.  Plowd.  Com.  474.  Saunder^s  case.{d) 

l(  ,/i.  counsel  or  commands  B.  to  beat  C.  with  a  small  wand  or 
rod,  which  could  not,  in  all  human  reason,  cause  death,  if  ^.  beats 
C.  with  a  great  club,  or  wound  him  with  a  sword,  whereof  he  dies, 
it  seems,  that  ^'i.  is  not  accessary,  because  there  was  no  conmiand 
of  death,  nor  of  any  thing,  that  could  probably  cause  death,  and  B. 
hath  varied  from  the  command  in  substance,  and  not  in  circum- 
stance. 

If  t^.  command  or  counsel  B.  to  kill  C.  and  before  the  fact  done 
t/9.  repents,  and  comes  to  B.  and  expressly  discharges  him  from  the 
fact,  and  countermands  it,  if  after  this  countermand  B.  doth  it,  it  is 
murder  in  B.  but  .^.  is  not  accessary,  but  if  ^.  repent  of  it,  but  before 
any  discharge  orcountermand  given  to  B.  B.  kills  C.  yet  »^.  remains 
accessary  notwithstanding  his  private  repentance,  for  in  as  much  as 
his  express  counsel  or  command  occasions  the  fact,  he  must  at  his 
peril  see,  that  he  countermand  B.  and  so  remedy  as  much 
as  in  him  lies  the  mischief,  that  his  former  command  occa-  [  437  1 
sioned.  Co.  P.  C.  p.  51.  Plowd.  Com.  476.  a.  Saiinder's 
case. 

In  manslaughter  there  can  be  no  accessaries  before  the  fact,  for  it 
is  presumed  to  be  sudden,  for  if  it  were  with  advice,  command,  or 
deliberation,  it  is  murder  and  not  manslaughter,  and  the  like  of  se 
defendendo. 

And  therefore  in  an  indictment  of  manslaughter  only,  if  others  be 
indicted  as  accessaries  before  the  fact,  the  indictment  is  void  against 
them. 

And  if  j1.  be  indicted  of  murder,  and  B.  as  accessary  before  by 
procurement,  4'c.  and  ,j3.  is  found  guilty  only  of  manslaughter,  B. 
shall  be  discharged.  4  Co.  Hep.  43.  b.  Goffe  versus  Bibilhe  a.nd  Hodl 
David. 

And  anciently,  he  that  struck  the  stroke,  whereof  the  party  died 
was  only  the  principal,  and  those,  that  were  present,  aiding,  and 
assisting,  were  but  in  the  nature  of  accessaries,  and  should  not  be  put 
upon  their  trial,  till  he  that  gave  the  stroke  were  attaint  by  outlawry 
or  judgment.  40  Ass.  25.  40  E.  2.  42.  a. 

But  at  this  day,  and  long  since,  the  law  hath  been  taken  otherwise, 
and  namely,  that  all  that  are  present,  aiding,  and  assisting,  are  equally 

.  (d)  But  tho  the  judges  were  of  opinion  in  this  case,  tliat  he  was  not  accessary,  yet 
they  thought  it  properest  tliat  he  should  be  delivered  rather  by  a  pardon,  tlian  otiiervvise, 
and  accordingly  they  kept  him  in  prison  from  one  session  till  another,  till  he  procured  a 
pardon;  and  master  Plowden,  the  reporter,  says,  it  was  his  opinion,  that  whoever  coun- 
sels or  commands  an  evil  thing  should  be  adjudged  accessary  to  all  which  follows  from 
tliat  evil  action,  but  not  from  any  other  distinct  thing. 


437  HISTORIA  PLACITORUM  CORONA.     . 

principal  with  him  that  ga-ve  the  stroke,  whereof  the  party  died.  4  H. 
7.  IS.  a-  per  omnes  justiciarios  ntriusque  band,  for  tho  one  gave 
the  stroke,  yet  in  interpretation  of  law  it  is  the  stroke  of  every  per- 
son, tliat  was  present,  aiding,  and  assisting,  and  tho  they  are  called 
principals  in  the  second  degree,  yet  they  are  principals,  and  the  law 
was  altered  herein,  in  tempore  H.  4  Ploivd.  Com.  100.  a.  and  there- 
fore, if  there  be  an  indictment  of  murder  or  manslaughter  against ./?. 
that  A.  felonice,  ^-c.  percnssit  B.  whereof  lie  died,  and  that  C  and  D. 
were  present,abetting,  aiding,  and  assisting  to  r^.  «f//e/onmm  8^' mur- 
drum S^-c.  niodo  Sj-  forma  prsedictd  f(iciend\  and  J2.  appears  not,  but 
B.  and  C.  appear,  they  shall  be  arraigned,  and  receive  their  judgment 
if  convict,  tho  A.  neither  appear,  nor  be  outlawed.  Plowd.  Com.  97. 
and  100.  Gyt tin's  case. 

\i  A.  be  indicted  as  having  given  the  mortal  stroke,  and  B.  and  C. 
as  present,  aiding,  and  assisting,  and  upon  the  evidence  it 
("438]  appear  that  B.  gave  the  stroke,  and  Ji.  and  C  were  only 
aiding  and  assisting,  it  maintains  the  indictment,  and  judg- 
ment shall  be  given  against  them  all,  for  it  is  only  a  circumstantial 
variance,  for  in  law  it  is  the  stroke  of  all  that  were  present,  aiding, 
and  abetting.  Ploivd.  Com.  98.  a.  9  Co.  Rep.  67.  b.  Mackally^s  case. 

Yet  the  circumstances  of  the  case  may  vary  the  degree  of  the 
offense  in  those  that  are  in  this  kind  parties  to  the  homicide. 

\i  t/i.  have  malice  against  B.  and  lies  in  wait  to  kill  him,  and  C. 
the  servant  of.^.  being  present,  but  not  privy  to  the  intent  of  his 
master,  finds  his  master  fighting  with  B.  takes  part  with  his  master, 
and  the  servant  or  master  kill  B.  this  is  murder  in  A.  because  he  had 
malice  forethought,  but  only  homicide  in  C.  PIovkI.  Com.  100.  b. 
Salisbury'' s  case,  where  it  was  also  resolved,  that  where  Ji.  had  ma- 
lice against  D.  the  master  of  ^.  but  by  mistake  assaults  and  kills  B. 
the  servant,  or  having  malice  against  D.  the  master,  and  B.  his  ser- 
vant, comes  in  aid  of  his  master,  and  Ji.  kills  him,  it  is  murder  ni  Ji. 
as  much  as  if  he  had  killed  the  master,  for  the  malice  shall  be  carried 
over  to  make  the  killing  of  i9.  murder. 

Upon  an  indictment  of  murder,  tho  the  party  upon  his  trial  be 
acquit  of  murder,  and  convict  of  manslaughter,  he  shall  receive  judg- 
meiu,  as  if  the  indictment  had  been  of  manslaughter,  for  the  offense 
in  substance  is  the  same. 

And  upon  the  same  reason  it  is  in  case  of  malice  implied,  if  .^.  B. 
and  C.  be  in  a  tumult  together,  and  D.  the  constable  comes  to  ap- 
pease the  affray,  and  Ji.  knowing  him  to  be  the  constable,  kill  him, 
and  B.  and  C.  not  knowing  him  to  be  the  constable,  come  in,  and 
finding./^,  and  J),  struggling,  assist  and  abet  ./^.  in  killing  the  consta- 
ble, this  is  murder  in  Jl.  but  manslaughter  in  B.  and  C. 

To  make  an  abetter  to  u  murder  or  homicide  principal  in  the  felo- 
ny, there  are  regularly  two  thnigs  requisite,  1.  He  must  be  present. 
2.  He  must  be  aiding  and  abettnig  ad  fcloniam  ^"  murdrum,  sive 
homicidium. 

If  he  were  procuring,  or  abetting,  and  absent,  he  is  acces- 
r  439  ]  sary  in  case  of  murder,  and  not  principal,  as  hath  been  shewn, 
unless  in  some  cases  of  poisoning,  ut  supra. 


HISTORIA  PLACITORUM  CORONA.  439 

If  he  be  present,  and  not  aiding  or  abetting  to  the  felony,  he  is 
ueither  principal  nor  accessary. 

If  A.  and  B.  be  fighting,  and  C.  a  man  of  fnll  age  comes  by  chance, 
and  is  a  looker  on  only,  and  assists  neither,  he  is  not  gnilty  of  murder 
or  homicide,  asf>rincipal  in  the  second  degree,  but  it  is  a  misprision, 
for  which  he  shall  be  fined,  unless  he  use  means  to  apprehend  the 
felon.  8.  E.  2  Coron.  395.  3  E.  3.  ibidem  293.  14  H.  7.  31.  b.  Stam- 
ford's P.  C.  40.  b.  Dalton,  cup.  lOS.  p.  2SA.{e) 

Therefore  it  remains  to  be  inquired,  1.  Who  shall  be  said  to  be 
present.  2.  Who  shall  be  said  abetting,  aiding  or  assisting  to  the 
felony. 

I.  As  to  the  first:  if  divers  persons  come  to  make  an  affray,  4*c. 
and  are  of  the  same  party,  and  come  into  the  same  house,  but  are  in 
several  rooms  of  the  same  house,  and  one  be  killed  in  one  of  the 
rooms,  those  that  are  of  that  party,  and  that  came  for  that  purpose, 
tho  in  other  rooms  of  the  same  house,  shall  be  said  to  be  present. 
Dull.  cap.  93.  p.  241. (/) 

The  lord  Uacre  and  divers  others  came  to  steel  deer  in  the  park 
of  one  Pelham,  Rayden  one  of  the  company  killed  the  keeper  in 
the  park,  the  lord  Dacre  and  the  rest  of  the  company  being  in  other 
parts  of  the  park,  it  was  ruled,  that  it  was  murder  in  them  all,  and 
they  died  fo»*  it.  Crompt.  25.  a.  Dalt.  ubi  supra,  34  H.  8.  B.  Co- 
ron. 172.(5-) 

The  like  in  case  of  burglary,  tho  some  stood  at  the  lane's  end  or 
field-gate  to  watch  if  any  came  to  disturb  them,  Co.  P.  C.p.  64.  11 
H.  A.  13  b.  yet  they  are  said  to  be  burglars,  because  present,  aiding, 
and  assisting  to  the  burglary. 

II.  Who  shall  be  said  abetting,  aiding  and  assisting. 

If  A.  comes  and  kills  a  man,  and  B.  rnns  with  an  intent  to  be 
assisting  to  him,  if  there  should  be  occasion,  tho  de  facto  he  doth 
nothing,  yet  he  is  principal  being  present,  as  well  as  Ji.  3  E.  3.  Co- 
ron. 309. 

If  divers  come  with  one  assent  to  do  mischief,  {male  f aire) 
as  to  kill,  rob  or  beat,  and  one  doth  it,  they  are  all  princi-  [440"] 
pals  in  the  felony,  (^-c.  3  E.  3.  Coron.  314. 

\{  A.  and  divers  others  in  his  company  intending  to  rob  a  person 
charge  him  with  felony,  and  as  they  are  carrying  him  to  gaol,  some 
of  the  company  rob  the  person  attached,  this  is  robbery  in  all,  but  if 
the  rest  of  the  company  come  without  any  such  intent,  it  seems  they 
are  not  guilty.  3  E.  3.  Coron.  350. 

If  .,^.  comes  in  company  with  B.  to  beat  C.  and  B.  beats  C.  that 
he  die,  A.  is  principal,  but  then,  according  to  those  elder  times,  the 
indictment  must  not  be  only,  that  he  was  present,  aiding,  and  assist- 
ing, for  that,  as  the  law  was  then  taken,  makes  him  only  accessary, 
but  the  indictment  mu.st  shew  the  special  matter,  that  they  came  to 
that  intent,  19  ^.  2.  Coron.  433.  but  now  that  course  is  altered,  and 

(e)  New  Edit.  cap.  161.  p.  527.  (/)  New  Edit.  c.ip.  145.  p.  472. 

{g)  See  also  Moor  86.  Kelyuge  56.  '    ' 


440  HISTORIA  PLACITORUM  CORONA. 

the  indictment  only  runs,  that  A.  was  present,  aiding,  and  assisting, 
and  that  is  sufficient  to  make  iiim  principal. 

So  if  Ji.  being  present  command  B.  to  kill  C.  and  he  doth  it,  both 
are  principals.  13  H.l.  10.  «.(A) 

If  many  be  present,  and  one  only  gives  the  strc^e,  whereof  the 
party  dies,  they  are  all  principals,  if  they  came  for  that  purpose. 
21  E.  4.  71.  a. 

The  case  of  Drayton  Basset  reported  by  Mr.  Crompton,  fol.  28. 
was-  this:  ./?.  with  thirty  others  and  more  entered  with  force  uppu 
the  manor-house  of  Drayton  Basset,  and  ejected  B.  his  children, 
and  servants  out  of  the  same ;  afterwards  twenty  others  on  the 
behalf  of  B.  three  days  after,  in  the  night,  came  with  weapons  vvith 
intent  to  re-enter,  and  one  of  the  twenty,  about  ten  of  the  clock  in 
the  night,  cast  fire  into  a  thatcht  house  adjoining  to  the  house, 
•whereupon  one  that  was  in  the  house  shot  otf  a  gun,  and  killed 
one  of  the  party  of  B.  and  then  the  rest  of  the  party  of  B.  fled,  and 
Jl.  and  his  company  continued  the  forcible  possession  of  the  house 
for  many  days  after,  whereupon  t^.  and  twenty-seven  more 
[  441  ]  were  indicted  of  murder,  and  arraigned  in  the  king's  bench, 
and  the  matter  aforesaid  given  in  evidence  against  him,  and 
Mich.  22  4'  23  Eliz.  he  was  found  guilty  of  manslaughter,  &  divers 
outres  de  rioters,  que  fueront  in  le  meason  al  temps,  que  le  home 
fuit  tue,  fueront  arraigns  come  principals,  coment  que  ne  assent  al 
setter  del  gunne  ne  al  tuer,  purceo  que  fueront  la  illoyalment  assem- 
blies, &  in  forcible  manner  gard  le  meason  one  Ji.  que  fuit  convict. 

And  consonant  to  this  is  Mr.  Dalton,  p.  241. (e)  in  these  words: 
"  Note  also,  that  if  divers  persons  come  in  one  company  to  do  any 
unlawful  thing,  as  to  kill,  rob  or  beat  a  man,  or  to  commit  a  riot,  or 
to  do  any  other  trespass,  and  one  of  them  iii  doing  thereof  kill  a  man, 
this  shall  be  adjudged  murder  in  them  all  that  are  present  of  that 
party  abetting  him,  and  consenting  to  the  act,  or  ready  to  aid  him, 
altho  they  did  but  look  on. 

A  man  seizeth  the  goods  of  a  Frenchman  in  time  of  war,  and 
carries  them"  to  his  house,  a  stranger  pretending  to  be  deputy- 
admiral  with  a  great  multitude  of  men  came  with  force  to  the 
house,  where  the  goods  were,  and  at  the  gate  of  the  house  made 
an  assault  upon  them  that  were  in  the  house,  a  woman  issued  out  of 
the  house  without  any  weapon,  and  is  killed  by  one  of  the  servants, 
who  came  to  take  the  goods,  by  throwing  a  stone  at  another,  that 
was  in  the  gate,  and  the  person,  that  came  to  seize  the  goods,  said, 
(before  his  coming)  he  would  make  him  a  cokes  that  kept  the  goods 
and  would  make  him  to  know  the  basest  in  his  house.  By  five 
judges,  two  Serjeants,  the  queen's  attorney,  and  solicitor,  it  was 
held,  that  if  it  appear  that  the  woman  came  in  defense  of  the 
master  of  the  house,  then  it  was  murder  in  the  vice-admiral  and  all 

(h)  This  ■case  was  something  more  tlian  a  l^are  command,  for  one  hold  him,  while  the 
other  killed  him;  but  wliat  our  author  hero  says  is  jnorc  directly  proved  by  the  case  in 

A.n.i.  18. «. 

{i)  New  Edit.  p.  472. 


HISTORIA  PLACITORUM  CORONA.  441 

his  companions :  but  by  other  five  judges  contrary,  for  no  malice 
was  against  the  woman,  and  murder  shall  not  be  extended  further, 
than  it  was  intended',  and  the  former  held,  that  if  JI.  and  B.  fight  by 
appointment  betore-hand,  and  a  stranger  comes  between 
them  to  part  them,  and  he  is  killed  by  A.  it  is  murder  in  []  442  ] 
him,  and  some  said  in  both,  but  the  others  noluerunt  ad 
hoc  concordare.  Mansell  and  Herbert^s  case,  H.  2  S,-  3  P.  4'  M. 
Dyer  12S.  6.  • 

That  point,  wherein  the  judges  differed,  was  whether,  the -mistake 
of  the  person  excuseth  it  from  murder,  but  it  seems  not  questioned, 
but  ail  agreed  it  manslaughter,  and  that  not  only  in  him,  that  gave 
the  blow  but  in  all  the  companions  of  that  party:  but  now  the 
former  point  is  sufficiently  settled,  that  if  it  had  been  murder,  in 
case  the  man  had  been  killed,  that  was  meant,  it  is  murder  in 
killing  the  woman,  and  that,  whether  she  came  as  a  partizan  to 
Mansell,  the  owner  of  the  house,  or  not,  quod  vide  supra:  and  in 
the  last  case  put,  in  Herberts  case  before,  it  is  certainly  murder  in 
him  that  kil's  the  man  that  comes  to  part  them,  and  if  it  had  been 
only  a  sudden  quarrel,  it  had  been  manslaughter  in  him  that  kills 
him,  and  Dalt.  cap.  93.  p.  240.(/t)  yea,  and  if  the  combating  were 
hy  malice  prepense,  it  it  is  held,  that  the  killing  of  him,  that  comes 
to  part  them,  is  murder  in  both,  and  both  were  hanged  for  it,  be- 
cause each  of  them  had  a  purpose  to  have  kild  the  other.  22  E,  3. 
Corone  262.  Lambert  out  of  Dallison^s  report,  p.  217.  but  that 
seems  to-  me  to  be  mistaken,  it  is  not  murder  in  both,  unless  both 
struck  him  that  came  to  part  them;  and  by  the  book  of  22  t/2ss. 
1\.  Coron.  ISO.  (which  seems  to  be  the  same  case,  tho  more  at 
large,)  he  only  that  gave  the  stroke,  had  judgment,  and  was  exe- 
cuted.(/)[!] 

And  therefore  it  is  a  mistake  in  those  that  say,  if  it  be  not 
known  which  of  them  did  it,  they  shall  both  have  judgment,  for 
the  jury  ought  precisely  to  inquire,  and  upon  circumstances  to  sa- 
tisfy themselves,  whether  the  one,  or  the  other,  or  both  did  it,  and 
neither  to  acquit,  nor  convict  both,  because  they  know  not  who 
did  it. 

But  to  return  to  the  aiders  and  abetters  again. 

By  the  cases  of  Drayton  Basset  and  Herbert  it  appears,  that  if 
many  come  to  commit  a  riotous  unlawful  act,  if  in  the  pursuit  of  that 
action  one  of  them  commits  murder  or  manslaughter,  they 
are  all  guilty,  that  are  of  that  party,  that  committed  the  dis-  [  443  ] 
order;  wherein  nevertheless  these  things  must  be  observed. 

1.  In  that  case  it  must  be  intended,  when  one  of  the  same  party 

Qc)  New  Edit.  cap.  145.  p.  472. 

(/)  Tlie  other  doth  not  appear  to  have  been  before  the  court,  but  upon  puttingf  the 
case,  the  court  said,  he  that  struck  is  guilty  of  felony,  but  said  nothing  as  to  him  who  did 
net  strike. 

[1]  Dyer,  128.  Kel.  Ill,  112,  1]7.  Foster,  261.  1  Hawk.  c.  31.  s.  42.  Slate  w,  Cooper, 
1  Green,  [N.  J.)  State  v.  Bentry,  2  Dev.  ^  Bat.  19G. 

VOL.    I. — 38 


443  HISTORIA  PLACITORUM  CORONA. 

commits  the  murder  or  manslaughter  upon  one  of  the  other  party,  or 
upon  those  that  came  to  appease  or  part  them,  or  by  due  course  of 
law  to  disperse  them. 

'  And  therefore  I  have  always  taken  the  law  to  be,  that  if  *^.  and 
B.  have  a  design  to  fight  one  with  another  upon  premeditation  or 
malice,  and  ^.  takes  C.  for  his  second,  and  B.  take  D.  for  his  second, 
t/i.  kills  B.  in  this  case  C.  is  principal,  as  present,  aiding,  and  abet- 
ting, but  D.  is  not  a  principal,  because  he  was  of  the  part  of  him, 
that  was  killed,  and  yet  I  know,  that  some  have  held,  that  D.  is 
principal  as  well  as  C.  because  it  is  a  compact,  and  rely  much  upon 
tl)e  book  of  22  E.  3.  Coron.  262.  before-mentioned,  but,  as  I  think, 
the  law  was  strained  too  far  in  that  case,  and  so  it  is  much  more 
in  making  D.  a  principal  in  the  death  of  B.  that  was  his  friend, 
tho  it  be,  I  confess,  a  great  misdemeanor,  yet  I  think  it  is  not  mur- 
der in  D. 

And  the  books  in  all  the  instances  of  this  nature  say,  that  it  is 
murder  or  manslaughter  in  that  party,  that  abetted  him,(*)  and  con- 
sented to  the  act,  that  Z>.  never  abetted  A.  to  kill  B.  but  abetted  B. 
indeed  to  have  killed  t^.[8] 

2.  It  must  be  a  killing  in  pursuit  of  that  unlawful  act,  that  they 
were  all  engaged  in,  as  in  the  case  of  the  lord  Dacre  before-men- 
tioned, they  all  came  with  an  intent  to  steal  the  deer,  and  conse- 
quently the  law  "presumes  they  came  all  with  intent  to  oppose  all 
that  should  hinder  them  in  that  design,  and  consequently  when  one 
killed  the  keeper,  it  is  presumed  to  be  the  act  of  all,  because  pursuant 
to  that  intent:  but  suppose,  thai  A.  i?.  and  C.  and  divers  others  come 
together  to  commit  a  riot,  as  to  steal  deer,  or  pull  down  inclosures, 
and  in  their  march  upon  tjieir  design,  t/^.  meets  with  D.  or  some  other 
with  whom  he  had  a  former  quarrel,  or  that  by  reason  of  some  col- 
lateral provocation  given  by  D.  to  A.  A.  kills  him  without  any  abet- 
ting by  any  of  the  rest  of  liis  company,  this  doth  not  make  all  the 

(*)  Yiz.  who  committed  the  homicide. 

[2]  When  upon  a  previous  agreement,  and  after  there  has  been  time  for  theblood  to  cool, 
two  persons  meet  with  deadly  weapons,  and  one  of  them  is  killed,  the  party  who  occa- 
sions the  death  is  guilty  of  murder,  and  the  seconds  also  are  equally  guilty  ;  and  with 
respect  to  others  shown  to  be  present,  the  question  is,  did  they  give  their  aid  and  assist- 
ance by  their  countenance  and  encouragement  of  the  principals  in  the  contest?  Merc 
presence  will  not  be  sufficient;  but  if  they  sustain  the  principals,  cither  by  advice  or 
assistance,  or  go  to  the  ground  for  the  purpose  of  encouraging  and  forwarding  the  un- 
lawful conflicts,  although  they  do  not  say  or  do  any  thing,  yet,  if  they  are  present  assist- 
ing and  encouraging  by  their  presence  at  the  moment  when  the  fatal  shot  is  fired,  they 
are,  in  law,  guilty  of  the  crime  of  murder.    lieg.y.  Young,  8  Car.  eSf  P.  644. 

If  two  persons  diliberatcly  fight  a  duel,  and  one  of  them  be  killed,  the  other  and  bis 
second  are  guilty  of  murder.  1  Hawk.  c.  31.  s.  31.  liix  v.  Onel.y,2  Sb-unge,  776.  No 
matter  how  grievous  the  [)rovocation,  or  by  which  p;irty  given.  The  second  of  the 
deceased  also  is  now  deemed  guilty  of  murder,  as  being  present,  aiding  and  abetting; 
and  altliougli  Lord  Hale  scorns  to  think  the  rule  of  law,  as  to  |)rincipals  in  the  second 
degree,  too  far  strained  in  that  case,  yet  in  several  late  cases  it  has  been  laid  down  that 
boili  the  seconfls  arc  guilly,  if  they  are  present  assisting  and  encouraging.  Sec  Smith  v. 
The.  Sl„te,  1  Yerger,  228.  Tiwcrnie's  case,  3  liulstrode,  171-2.  1  Roll.  Hep.  361.  Hex 
V.  Murphy,  6  (J.  df  P.  103.  Jirg  v.  Caddij,  1  Car.  Sf  P.  210.  Foster,  297.  4  ^l.  Com. 
I'Jl.     3  inst.  51.     Rex  v.  Rice,  3  East,  Gtil,  post,  453. 


HISTORIA  PLACITORUM  CORONA.  444 

party  oft/?,  tho  present,  to  be  therefore  aiding  and  abetting,  and  con- 
sequently priiicipals  in  this  murder  or  manslaughter,  which  was  acci- 
dental, and  not  within  the  compass  of  their  original  intention. 

But  if,  when  they  had  come  to  steal  the  deer,  or  throw  down  the 
inclosure,  any  had  opposed  them  in  it,  either  by  words  or  actual  re- 
sistance, and  A.  had  killed  him,  it  had  been  murder  in  all  the  rest 
of  the  company,  that  came  with  the  intent  to  do  that  unlawful  act, 
tho  there  were  no  express  intention  to.  kill  any  person  in  the  first 
enterprize,  because  the  law  presumes  they  come  to  make  good  their 
design  against  all  opposition. 

And  this  is  the  reason  of  the  book  3  E.  3.  Coron.  350.  where  many 
came  to  commit  a  disseisin,  and  one  was  killed,  and  all  that  were  of 
the  company  were  arraigned  as  principals,  and  the  fact  found  and 
they  were  condemned,  tho  the  jury  said  they  did  nothing  {de  male 
voliint)  of  malice,  but  were  of  the  company;  tho  possibly,  as  the  cir- 
cumstances of  that  case  were,  it  was  only  manslaughter,  as  in  the 
case  of  Drayton  Basset,  because  it  was  upon  a  sudden,  and  upon  a 
pretense  of  title. 

3.  Again,  altho  if  many  come  upon  an  unlawful  design,  and  one  of 
the  company  kill  one  of  the  adverse  party  in  pursuance  of  that  de- 
sign, all  are  principals;  yet  if  many  be  together  upon  a  lawful  account, 
and  one  of  the  company  kill  another  of  an  adverse'  party  without 
any  particular  abetment  of  the  rest  to  this  fact  of  homicide,  they  are 
not  all  guilty  that  are  of  the  company,  but  only  those,  that  gave  the 
stroke,  or  actually  abetted  him  to  do  it. 

There  is  a  common  nuisance  committed  in  the  highway  by  A.  B. 
C.  D.  in  the  vill  of  M.  and  E.  F.  G.  H.  J.  <§-c.  and  twenty  more  of 
the  inhabitants  of  M.  come  to  remove  the  nuisance,  Jl.  B.  C.  and  D. 
oppose,  F.  strikes  A.  suddenly,  and  kills  him,  F.  is  guilty  of  man- 
slaughter, but  the  rest  of  the  party  of  F.  are  not  therefore  guilty, 
barely  upon  this  account  that  they  were  of  the  company,  but  only 
such  of  the  company,  as  did  actually  assist  or  abet  F.  to  strike  or  kill  A. 

But  if  in  truth  it  were  no  nuisance,  but  an  act  that  was  lawfully 
done  by  A.  and  then  JJ.  had  been  killed  by  F.  all  the  rest  of  the 
party  and  company  of  F.  had  been  guilty,  that  came  with 
design  to  remove  Ihat  which  they  thought  a  nuisance,  but   [445] 
was  not,  because  it  was  a  riotous  and  unlawi'ul  assembly. 

If  t/^.  hath  a  good  title  to  his  house,  or  hath  been  in  possession 
thereof  tor  three  years,  (in  which  case  he  may  detain  it  with  force  by 
the  statute  of  8  H.  6.  cap.  9.)  if  any  person  come  to  rob  him  or  kill 
liinr,  and  he  shoot  and  kill  him,  it  is  not  felony,  nor  doth  he  forfeit 
his  goods,  as  in  case  of  homicide  se  defendenilo.  11  Co.  Rep.  82.  b. 
5  Co.  Rep.  91.  h. 

But  '\{  A.  comes  to  enter  with  force,  and  in  order  thereunto  shoots 
at  his  house,  and  B.  the  possessor,  having  other  company  in  his  house, 
shoots  and  kills  A.  this  is  manslaughter  in  B.  and  so  it  is  ruled 
5  Eliz.  in  Hdrcourt^s  case,  Crompt.  29.  a.  Dalt.  cap.  IS.  p.  105. (m) 
Ibid.  cup.  98.  p.  250.(n) 

(m)  New  Edit,  cap.  121.  p.  427.  (n)  cap.  150.  p.  483. 


445  HTSTORIA  PLACITORUM  CORONA. 

And  in  this  case,  if  B.  shoot  out  of  liis  house,  and  killeth  ^.  I 
think  it  plain,  that  it  is  not  felony  in  the  rest  of  the  honsehold,  nay, 
tho  he  had  hired  extraordinary  company  to  help  to  guard  his  house 
upon  such  an  occasion,  (as  by  law  it  seems  he  may  do,  notwithstand- 
ing the  opinion  of  Crompton,fol.  70.  u.  to  the  contrary,  vide  21.  H. 
7.  39.  a.  5  Co.  Rep.  Q\.  b.  Seamati's  case,.  11  Co.  Rep.  82.  b.  Leioes 
Bowlegs  case)  yet  this  is  not  manslaughter  in  the  rest  of  the  com- 
pany, because  the  assembly  was  lawful  and  justifiable. 

And  therefore  in  that  case,  no  others  of  the  company,  that  are  in 
the  liouse,  shall  be  said  guilty,  but  only  such  as  actually  abet  him  to 
do  the  fact;  and  these  indeed  will  be  principals  by  reason  of  actual 
abetting,  but  not  barely  upon  the  account  of  being  in  the  house,  and 
jof  the  same  company,  because  the  assembly  to  defend  the  house  by 
lawful  means  was  lawful. 

But  in  the  case  of  a  riotous  assembly  to  rob,  or  steal  deer,  or  do 
any  unlawful  act  of  violence,  there  the  offense  of  one  is  the  offense  of 
all  the  company;  as  in  the  case  of  the  lord  Dacre,  and  of  the  house 
of  Drayton  Basset,  where  there  was  first  a  riotous  and  unlawful 
entry,  and  keeping  possession  by  those  that  shot. 

4.  If  there  be  many,  that  are  present,  abetting,  aiding, 
r  446  ]  and  assistuig,  tho  all  may,  as  in  the  cases  afore  shewn,  be 
guilty  of  homicide,  yet  upon  different  circumstances  some 
may  be  guilty  of  homicide,  and  not  of  murder,  others  may  be  guilty 
of  murder;  vide  the  case  o{  Salisbury  before,  Ploivd  Com.  101.  a. 
The  master  assaults  with  malice  prepense,  the  servant  being  igno- 
rant of  the  malice  of  his  master,  takes  part  with  his  master,  and  kills 
the  other,  it  is  manslaughter  in  the  servant,  and  murder  in  the  master. 

Upon  a  sudden  falling  out  between  ^.  and  B.  in  the  street, ./?. 
gathers^ many  of  his  friends  together  to  assault  B.  and  B.  doth  the 
like,  the  constable,  and  some  .in  his  aid,  come  to  part  the  affray,  and 
keep  the  peace.  Jl.  hath  notice,  that  he  is  the  constable,  but  divers 
of  his  company  know  it  not,  nor  could  reasonably  or  probably  know 
it,  ^.  kills  the  constable,  this  is  murder  in  Jl.  but  the  rest  of  his 
company,  that  knew  it  not^  are  not  guilty  of  the  murder. 

But  such  of  them,  as  knowing  it  to  be  the  constable,  yet  abetted 
^.  to  kill  him,  are  guilty  of  murder,  those  that  knew  it  not,  and 
■yet  abetted  J2.\o  kill  him,  are  guilty  of  manslaughter;  and  those,  that 
neither  knew  him  to  be  the  constable,  nor  did  actually  abet  nor  assist 
^.  to  kill  him,  are  not  guilty,  as  it  seems,  because  this  was  a  new 
emergency,  and  out  of  the  bounds  and  verge  of  the  quarrel,  wherein 
they  were  before  engaged,  and  such  whereunto  these  were  not  privy; 
quod  I  amen  (juxre.\^o) 

Sec  Foster  121-131.  and  his  discourse  III.  p.  341. — per  lot.     4  Blacks.  Com.  ch.  3. 
p.  34-40.     See  Index  to  I  Hawk.  P.  C.  tit.  Accessary.  ' 

[3]  One  who  procures,  counsels,  or  commands  another,  but  is  absent  when  the  crime 
is  consurinnatcd,  is  an  accessary  before  the  fact.  I'ost,  612.  G1.5,G16.  Dyer.,  I8G.  3  Ind. 
108.  139.  2  Hawk.  P.  C.315-VJ.  Foster,  73. 125.361.  1  Moody  C.  C..417.  7  C.  <.^  F. 
836.    4  Bl.  Com.  3,').  40.  323. 

If  several  persons  meet  together  for  the  prosecution  of  some  ui^lawful  design,  and  in 


HISTORIA  PLACITORUM  CORON.^.  446 

furtherance  of  that  design  a  man  be  killed,  tlie  gfuilt  of  the  iiillin^  will  attacii  to  all  pre'- 
senl,  whetlier  it  be  murder  or  manslaughter.    Foster,  2G1.    M'jickiin''s  case,  2  Leu}.  225. 

As  to  what  will  excuse  persons  otherwise  liable  as  accessaries,  see  ante  52  et  seq.  Rex 
V.  Sawyer,  1  Russ.  424.  Rex  v.  Dyson,  R.  Sg  R.  C.  C.  523.  Reg.  v.  Tyler,  8  C.  df 
F.  616. 

On  indictment  for  murder  against  several,  one  cannot  be  convicted  of  an  assault  com- 
mitted on  the  deceased  in  a  previous  scuffle,  such  assault  not  being  in  any  way  con- 
nected with  the  cause  of  death.     Re^.  v.  t kelps,  2  M.  C.  C.  R.  240. 

All  present  at  the  time  of  committing  an  otfence  are  principals,  although  one  only 
acts,  if  they  are  confederated  and  engaged  in  a  common  design,  of  which  the  offence  is 
part.     Rex  v.  Tattersall,  1  Russ.  22.     Rex  v.  Dyson,  R.  ^  R.  C.  C.  523. 

AH  those  who  assemble  themselves  together,  with  an  intent,  even  to  commit  a  tres- 
pass,  the  execution  whereof  causes  a  felony  to  be  committed,  and  continue  together, 
abetting  one  another  till  they  have  actually  put  their  design  into  execution,  and  also, 
ail  those  who  are  present  when  a  felony  is  committed,  and  abet  the  doing  of  it  are  prin- 
cipals in  felony.    Reg^.  v.  Howell,  9  Car.  Sf  F.  437. 

Where  persons  combine  to  stand  by  one  another  in  a  breach  of  the  peace,  with  a 
general  resolution  to  resist  all  opposers,  and  in  the  execution  of  their  design  a  murder  is 
committed;  all  of  the  company  are  eciuajly  principals  in  the  murder,  though  at  the  time 
of  the  fact  some  of  them  were  at  such  a  distance  as  to  be  out  of  view.  Reg.  v.  Howell, 
cited  supra. 

If  several  are  out  for  the  purpose  of  committing  a  felony,  and  upon  an  alarm  run  dif- 
ferent ways,  and  one  of  them  maim  a  pursuer,  to  avoid  being  taken,  the  others  are  not 
to  be  considered  principals  in  such  act.    Rex  v.  White,  R.  S^  R.  C.  C.  99. 

If  a  charge  against  an  accessary  is,  that  the  principal  felony  was  committed  by  per- 
sons unknown,  it  is  no  objection  that  the  same  grand  jury  have  found  a  bill  imputing 
the  principal  felony  to  another  person.    Rex  v.  Bush,  R.  tSf  R.  C.  C.  372. 

It  is  nut  essential  that  there  should  have  been  any  direct  communication  between  an 
accessary  before  the  fact  and  the  principal  felon.  It  is  enough  if  the  accessary  direct 
an  intermediate  agent,  to  procure  another  to  commit  a  felony,  and  it  will  be  sufficient 
even  if  the  accessary  does  not  name  the  person  to  be  procured,  but  merely  directs  the 
agent  to  employ  some  person.  Rex  v.  Cooper,  5  Car.  6f  P.  535.  Rex  v.  Morris,  2  Leach 
C.  C.  1096.  Rex  v.  Giles,  R.  ^  M.  166.  Rex  v.  Badcock,  R.  S^  R.  C.  C.  249.  Rex  v. 
Stewart,  R.  6;  R.  C.  C.  363. 

If  A.  is  charged  in  the  indictment  as  principal,  and  B.  as  accessary,  and  the  jury  find 
B.  to  be  the  principal  and  A.  the  accessary,  the  indictment  is  sustained.  Statev.  Mairs, 
Coxe,  N.  J.  453. 

Tiie  crime  of  an  accessary  before  the  fact  to  a  murder  is  murder.  The  Feople  v. 
Mather,  4  Wend.  229. 

An  accessary  in  a  capital  felony  cannot  be  tried  without  his  own  consent  when  the 
principal  has  died  before  conviction.  Commonwealth  v.  FhiUips,  16  Mass.  423.  But  he 
must  answer  to  an  indictment  charging  him  as  accessary  to  two  principals,  one  of  whom 
only  has  been  convicted,  the  other  liavmg  died.  Conimonwealth  v.  Kiiapp,  10  Pick.  477. 
Conviction  of  the  principal  is  prima  facie  evidence  of  his  guilt,  on  the  trial  (jf  an  ac- 
cessary, and  throws  the  burden  of  proof,  as  to  his  innocence,  on  the  accessary;  but  the 
accessary  is  not  ms^tricted  to  the  proof  of  new  facts.     Idem.. 

The  charge  of  King,  P.  in  the  case  of  Daily  (4  Penna.  Law  J.,  155,  Philadelphia,  1845,) 
contains  an  excellent  summary  of  the  common  law  doctrine  of  the  responsibility  of  per- 
sons engaged  in  unlawful  combinations  resulting  in  death.  "When  divers  persons,  (says 
Judge  King)  resolve  generally  to  resist  all  officers  in  the  commission  of  a  breach  of  the 
peace,  and  to  execute  it  in  such  a  manner  as  naturally  tends  to  raise  tumults  and  affrays, 
and  in  doing  so  happen  to  kill  a  man,  they  are  all  guilty  of  murder,  for  they  must  at  their 
peril  abide  the  event  of  their  actions,  who  unlawfully  engage  in  such  bold  disturbances 
of  the  public  peace  in  opposition  to,  and  in  defiance  of  the  justice  of  the  nation.  Malice 
in  sucii  a  killing  is  implied  by  law,  in  all  who  were  engaged  in  the  unlawful  enterprise; 
whetiicr  the  deceased  fall  by  the  hand  of  the  accused  in  particular,  or  otherwise,  is  im- 
material. AH  are  responsible  for  the  acts  of  each,  if  done  in  pursuance  and  furtiierance 
of  the  common  design.  This  doctrine  may  seem  hard  and  severe,  but  has  been  found 
necessary  to  prevent  riotous  combinations  committing  murder  with  Impunity.  For 
when  su-jh  illegal  associates  are  numerous,  it  would  scarcely  be  practicable  to  establish 
the  identity  of  the  individual  actually  guilty  of  the  homicide.  When,  however,  a  homi- 
cide is  committed  by  one  or  more  of  a  body  unlawfully  associated,  from  causes  .having  no 


446  HISTORIA  PLACITORUM  CORONA. 

connexion  with  the  common  object,  the  responsibility  for  such  homicides  attaches  ex- 
clusively to  its  actual  perpetrators." 

If  several  persons  combine  to  commit  murder,  and  before  the  killing  is  actually 
effected,  one  of  them  withdraws  from  tlie  combination  and  leaves  the  others,  doing  no- 
tiling  to  aid  or  encourage  them  in  any  way,  he  is  not  responsible  for  their  acts,  although 
they  carry  out  the  object  of  the  original  combination  by  committing  murder.  Common- 
wealth V.  Hnuphey,  M  S.  before  the  Oyer  and  Terminer  for  Philadelphia  county,  March, 
1845.  King,  President.  See  also,  U.S.  v.  Cornell,  2  Mason,  C.  C.  R.  91.  U.  S.  v.  Ross, 
1  Gallison,  C.  C.  R.  524. 

He  who  kills  another  upon  his  desire  or  command  is,  in  the  judgment  of  the  law,  as 
much  a'murderer  as  if  lie  had  done  it  merely  of  his  own  head.  1  Hawk.  c.  21,  s.  6;  Saw- 
yer's  case,  O.  5. 1815,  MS.     1  Riiss.  485. 

If  two  persons  mutually  agree  to  commit  suicide  together,  and  the  means  employed 
to  produce  death  only  take  effect  on  one,  the  survivor  will,  in  point  of  law,  be  guilty  of 
the  murder  of  the  one  who  died.     R.  v.  Alison,  8  Car.  ^  P.  418. 

If  one  counsel  another  to  commit  suicide,  and  the  other,  through  the  influence  of  the 
advice,  kill  himself,  the  adviser  is  guilty  of  murder  as  principal.  The  presumption  of 
law  in  such  case  is,  that  the  advice  had  the  effect  intended  by  the  adviser,  unless  the 
contrary  be  shown.  Commonivealth  v.  Bowcn,  13  Mass.  359.  See  Rex  v.  Dyson,  R.  Sf 
R.  C.  C.  523.    1  Hawk.  P.  C.  c.  27,  s.  4. 

But  Alderson,  J.  in  Regina  v.  Leddinston,  9  C.  Sf  P.  79,  ruled  that  a  person  cannot  be 
tried  for  inciting  another  to  commit  suicide,  although  that  other  commit  suicide. 


[447] 


CHAPTER  XXXV. 


CONCERNING  THE  DEATH  OF  A  PERSON  UNKNOWN,  AND  THE  PROCEED- 
INGS THEREUPON. 

Because  this  chapter  as  well  concerns  murder  as  mayislmis^hter., 
before  I  come  to  examine  the  particular  offenses  themselves,  I  shall 
subjoin  a  few  words  touching* this  title. 

Antiently  there  was  a  law  introduced  by  Caniitiis  the  Dane,  that 
if  any  man  were  slain  in  the  fields,  and  the  manslayer  were  unknown, 
and  could  not  be  taken,  the  township,  where  he  was  slain,  should  be 
amerced  to  sixty-six  marks,(*)  and  if  it  were  not  sufficient  to  pay  it, 
the  hundred  should  be  charged,  unless  it  could  be  made  appear  be- 
fore the  coroner,  upon  the  view  of  the  body,  that  the  party  slain  were 
an  Englishman,  and  this  making  it  appear  was  varicfiis,  according 
to  the  custom  of  several  places,  but  most  ordinarily  it  was  by  the 
testimony  of  two  males  of  the  part  of  the  father  of  him  that  was 
slain,  and  by  two  females  of  the  part  of  his  mother. 

And  this  amercement  was  usually  called  murdrum ;  and  the  pre- 
sentment and  proof,  that  the  party  slain  was  an  Englishman,  was 
called  Englesbury,  and  presentment  of  Engleshury. 

And  this  was  tlierefore  provided  to  avoid  the  secret  murder  of  the 
Danes,  who  were  hated  by  the  English,  and  oftentimes  privily  mur- 

(*)  Sec  the  laws  nf  Edward  the  confessor,  Lih  XV.  Sf  XVI.  by  which  it  appears  the 
amerciament  was  XLVI.  marks,  and  not  LXVI.  marks,  as  Bracton  says,  whicli  mistake 
might  probably  be  occasioned,  as  Wilkins  observes  in  liis  notes  ad  Leg.  Anglo-Sax. 
p.  280.  by  thq  transposition  of  the  numeral  letters  L  and  X. 


HISTORIA  PLACITORUM  CORONA.  447 

dered ;  this  appears  by  Bracton,{a)  and  is  transcribed  out  of  him  by 
Stomf.  Lib.  I.  cup.  10.  fol.  17. 

When  JVillicnn  the  first  came  in,  he  found  the  like  animosity  by 
the  Danes  and  Saxons  against  the  French  and  Normans,  who  were 
many  times  secretly  icilled  by  the  natives,  and  therefore  he  did  in 
effect  continue  this  lavv,(J)  only  he  applied  it  to  the  French 
and  Normans,  viz.  that  if  a  person  were  slain  by  an  un-  [  448  ] 
known  hand,  if  he  were  a  Frenchman  or  a  Norman,  the 
hundred  was  amerced,  where  he  was  found,  and  if  they  were 
insufficient,  then  the  county,  which  was  sometimes  36/.  some- 
times 24/. 

And  tho  this  was  instituted  for  the  preservation  of  the  French  and 
Normans,  yet  intermarriages  happening  between  the  natives  and 
them,  so  that  in  process  of  time  they  became,  as  it  were,  one  people, 
the  same  custom  was  continued  as  to  all  persons  that  were  killed  by 
unknown  hands,  and  this  amerciament  was  called  murdrum.^ 

This  appears  at  large  by  the  black  book  of  the  Exchequer  written 
by  Gervasius  Tilbiiriehsis,  Lib.  I.  cap.  Quid  niitrdrum,  &r  qnare 
sit  dictum,  which  expounds  the  true  scope  of  the  statute  of  Marl- 
bridge,  cap.  2G.  Quod  miirdriim  de  cxtero  non  adjudicetur  pro 
niortuo  per  infortunium. 

But  as  well  the  presentment  of  Englesbery,  as  the  amerciament 
for  secret  homicide  by  persons  unknown,  was  taken  away  by  the 
statute  of  14  E.  3.  cap.  4.  yet  there  remained  a  certain  amerciament 
upon  the  township,  where  a  person  was  slain,  and  the  offender 
escaped,  viz.  If  a  person  were  slain  in  the  day-time,  in  a  town  walled, 
or  not  walled,  the  town  is  to  be  amerced,  if  the  vill  be  not  suffi- 
cient, the  hundred  shall  be  charged,  and  on  default  of  them  the 
county. 

If  he  be  slain  in  the  day-time  out  of  any  vill,  the  hundred  shall  be 
amerced,  and  on  their  disability  the  county  shall  be  charged  with  the 
amerciament. 

If  a  man  be  killed  either  in  day  or  night,  and  the  offender  be  taken 
and  committed  to  the  constable,  or  to  the  vill,  if  he  escape,  the  town- 
ship where  the  party  was  slain,  or  where  the  offender  was  taken, 
shall  be  fined. (/>) 

But  if  a  person  be  slain  in  the  day  or  night  in  a  walled  town,  and 
the  offender  be  not  taken,  the  town  or  city  shall  be  fined. 

If  any  private  person  be  present  when  a  murder  or  man- 
slaughter is  committed,  and  doth  not  his  best  endeavour  [449] 
to  apprehend  the  malefactor,  he  shall  be  fined  and  impri- 
soned. 

All  which  differences  appear  by  comparing  the  books  of  Stamf. 

(a)  Lib.  III.  de  corona  cap.  15.  p.  134.  b.  vide  Spelm.  verb.  Engleckeria.  Blacks.  Com. 
Lib.  IV.  cap.  14.  p.  195. 

(t)  Vide  Leg.  Gul.  Con.  I.  2G.  Sf  Leg.  Hen.  I.  I.  91.  Wilk.  Leg.  Anglo-Sax.p.  224.  280. 

t  By  tlie  word  "  murder"  in  g^rants,  the  grantee  claimed  to  have  amerciaments  of  mur. 
derers.  Bro.  tit.  quo  icarranto.  HI.  2. 

{b)  For  the  vill  is  not  discharged  till  he  be  delivered  into  goal,  or  to  the  custody  of 
the  sheriff,  after  which  the  sheriff  will  be  chargeable.  Stamf.  If.  C.  cap.  31. 


449  HISTORIA  PLACITORUM  CORONA. 

P.  C.  cap.  30  4'  31.  Coke  P.  C.  cap.  1.  p.  53.  3  H.  7.  cap.  1.  and,  the 
books  there  cited.[lj 

— s:^  — 

[1]  All  persons  who  are  present  when  a  felony  is  committed,  or  a  dang-erous  wound 
given,  are  bound  to  apprehend  the  offender,  on  pain  of  being-  fined  and  imprisoned  for 
their  neg-lect,  unless  they  are  under  age  at  the  time.  2  Hawk.  c.  12.  s.  1. 

Also  every  private  person  is  bound  to  assist  any  officer  demanding  his  help  for  the 
taking  of  a  felon,  or  the  suppression  of  an  affr^iy,  id.  s.  12,  and  may  be  indicted  if  he 
refuses  without  lawful  excuse.  Reg.  v.  Brown,  1  C.  S^  Mar.  314. 

And  it  is  the  duty  of  all  private  persons  to  arrest  without  warrant  any  person  detected 
in  the  attempt  to  commit  a  felony.  R.  v.  Hunt,  R.  8^  M.  C  C.  93;  R.  v.  Howarth,  R.  Sf 
M.  C  C.  207.  And  though  the  otfender  run  away,  and  give  over  his  intention  of  com- 
mitting the  felony,  still  it  seems,  on  firesh  pursuit,  he  may  be  apprehended  by  any  one. 
R.  V.  Howarth,  R.  4f  M.  G.  C.  207. 

If  a  felony  has  been  actually  committed  by  some  one,  a  private  person  may  arrest,  or 
direct  a  peace  officer  to  arrest  a  party  whom  he  has  reasonable  grounds  for  suspecting  to 
have  been  guilty  of  it,  though  in  fact  such  party  be  really  innocent;  but  he  is  not  abso- 
lutely bound  to  do  so,  like  a  peace  officer;  and  he  does  so  at  his  peril,  for  if  these  grounds 
for  suspecting  the  party  be  not  reasonable,  or  there  has  been  no  felony  committed,  the 
person  arresting  is  guilty  of  a  false  imprisonment,  and  liable  accordingly.  Pauton  v. 
Williams,  1  G.  <.y  D.  504.  2  Ad.  Sf  E.  {N.  S.)  69;  Allen  v.  Wright,  8  C.  ^  P.  .522. 

A  bare  surmise,  however,  is  plainly  insufficient.  Davis  v.  Russel,  5  Bing.  364.  2  M, 
Sf  P.  590,  S.  C.  4  Inst.  144. 

See  Vol.  2d,  chapter  10. 


CHAPTER  XXXVI. 

TOUCHING    MURDER,    WHAT    IT    IS,    AND    THE    KINDS    THEREOF. 

Murder  and  manslaughter  differ  not  in  the  kind  or  nature  of  the 
offense,  but  only  in  the  degree,  the  former  being  the  killing  of  a  man 
of  malice  prepense,[2]  the  latter  upon  a  sudden  provocation  and  fall- 
ing out.[l] 

[1]  For  manslaughter,  see  chapter' XXXVIII.  p.  466. 

[2]  The  best  explanation  of  the  legal  meaning  of  malice,  is  that  of  Justice  Foster.  Its 
brevity,  accuracy  and  felicity  of  language  have  recommended  it  and  caused  its  almost 
universal  recognition  as  well  in  America  as  in  England,  particularly  the  closing  clause, 
in  which  an  act  is  declared  to  be  malicious,  which  shows  "  a  heart  regardless  of  social 
duty  and  fatally  bent  on  mischief"  When  (says  Foster)  the  law  maketh  use  of  the  term 
molice  aforethought,  as  descriptive  of  the  crime  of  murder,  it  is  not  to  be  understood  in 
that  narrow  restrained  sense,  to  which  the  modern  use  of  the  word  malice  is  apt  to  lead 
one,  a  principle  of  malcvoltnce  to  particulars ;  for  the  law  by  the  term  malice  in  this  in- 
stance rneancth,  that  the  fact  hath  been  attended  with  sucli  circumstances  as  are  the 
ordinary  symptoms  of  a  wicked,  depraved,  malignant  spirit. 

In  the  case  of  an  appeal  of  death,  which  was  anciently  the  ordinary  method  of  prose- 
cution, the  term  malice  is  not  made  use  of  as  descriptive  of  the  offence  of  murder,  in 
contradistinction  to  simple  felonious  homicide.  The  precedents  charge,  that  the  fact  wits 
done  nequitir  <^-  in  felouid,  which  fully  takclli  in  tiie  legal  sense  of  the  word  malice.  The 
words  per  malitiam  and  malitiosc  our  oldest  writers  do  indeed  frequently  use  in  some 
other  cases;  and  tliey  constantly  mean  an  action  flowing  from  a  wicked  and  corrupt 
motive,  a  tiling  done  malo  animo,  mala  conscientid,  as  they  express  themselves.  Of  which 
many  instances  might  be  given.     I  will  mention  one  or  two. 

Tlie  method  of  proceeding  in  ancient  times  in  a  case  of  robbery  or  larceny,  when  the 
stolen  goods  were  found  upon  tlic  defendant,  was,  that  if  he  alleged  that  he  bought  them 
of  another,  whom  he  named  and  vouched  to  warranty,  the  voucher,  if  he  appearedand 
entered  into  warranty  was  to  stand  in  tiie  place  of  the  defendant  pro  bono  Sf  malo.    The 


HISTORIA  PLACITORUM  CORONiE.  449 

And  therefore  it  is,  that  upon  an  indictment  of  murder  the  party 
offending  may  be  acquitted  of  murder,  and  yet  found  guilty  of  man- 
legislature  hath  likewise  frequently  used  the  terms  malice  and  malicioushj  in  the  same  gene- 
ral sense, as  denoting  a  wicked,  perverse,  and  incorrigible  disposition."  Foster  refers  to  the 
statutes  28  Ed.  1.  st.  '2.  4  Sf  5  W.  S(  M.  c.  4.  and  continues:  "  In  the  same  latitude  are  the 
words  malice  aforethought  to  be  understood  in  the  statutes  which  oust  clergy  in  the  ease 
of  wilful  murder.  The  malus  animus,  which  is  to  be  collected  from  all  the  circumstances 
is  what  bringeth  tlie  offence  within  the  denomination  of  wilful  malicious  murder,  what- 
ever might  be  the  immediate  motive  to  it;  wlicther  it  be  done  as  the  old  writers  express 
themselves,  '  Iiu  vtl  odio,  v^l  causa  lucii,'  or  from  any  other  wicked  or  mischievous  in- 
centive. And  most  if  not  ail  the  cases,  which  in  the  hooks  are  ranged  under  the  head  of 
implied  malice,  will  if  carefully  adverted  to,  be  found  to  turn  upon  this  single  point,  that 
the  fact  hath  been  attended  with  such  circumstances  as  carry  in  them  the  plain  indica- 
tions of  an  heart  regardless  of  social  duty  and  fatally  bent  upon  mischief."  Foster,  256,  257. 
An  act  "  flowing  from  a  wicked  heart,  a  mind  grievously  depraved,  and  acting  from  mo- 
lives  highly  criminal,  is  the  genuine  notion  of  malice  in  our  law."  Curtis''  ease.  Foster,  138. 

Lord  Hult  says  upon  this  subject,  "  some  have  been  led  into  mistakes  by  not  -well  con- 
sidering what  the  passion  of  malice  is;  tboy  have  construed  it  to  be  a  rancour  of  mind 
lodged  in  the  person  killing  for  some  considerable  time  before  the  commission  of  the  fact; 
which  is  a  mistake,  arising  from  a  not  well  distinguishing  between  hatred  and  malice. 
Envy,  hatred  and  malice,  are  three  distinct  passions  of  the  mind."  Kel.  127.  Amongst 
the  Romans,  and  in  the  civil  law,  malitia  appears  to  have  imported  a  mixture  of  fraud, 
and  of  that  which  is  opposite  to  simplicity  and  honesty.  Cicero  speaks  of  it  De  Nat. 
Deor.  Lib.  3.  s.  30.  as  "  ver.suta  et  falleax  nocendi  ratio;"  and  in  other  work  De  Ojjic. 
Lib.  3.  s.  18.  he  says,  "  mihi  quidem  etiam  vertp  hsereditatcs  non  honestte  videntur  si 
sint  malitiosis,  (i.  e.  according  to  Pearce,  a  malo  animo  profe'ctis,)  blanditiis  officiorum ;  non 
veritate  sed  simnlatione  qucesitcB."  And  see  Dig.  Lib.  2.  Tit.  13.  Lex  8.  where,  in 
speaking  of  a  banker  or  cashier  giving  his  accounts,  it  is  said,  "  Ubi  exigitur  argentarius 
rationes  edere,  tunc  punitur  cum  dolo  malo  non  exhibet.  *  *  *  Dolo  malo  autem  non 
edit,  et  qui  maliliose  edidit,  et  qui  in  totum  non  edit."  "Amongst  us  malice  is  a  term  of 
law  importing  directly  wickedness,  and  excluding  a  just  cause  or  excuse."  1  Russell  on 
Cri tries,  483. 

Lord  Coke,  in  his  comment  on  the  words  per  7nalitia7n,  says,  "  if  one  be  appealed  of 
murder,  and  it  is  found  by  verdict  that  he  killed  the  party  se  defendendo,  this  shall  not 
be  said  to  be  per  malitiam,  because  he  had  a  just  cause."  2  Inst.  384.  And  where  the 
statutes  speak  of  a  prisoner  on  his  arraignment  standing  mute  of  malice,  the  word  clearly 
cannot  be  understood  in  its  common  acceptation  of  anger  or  desire  of  revenge  against 
another.  Thus,  where  the  25  Hen.  VIIL  c.  3.  says,  that  persons  arraigned  of  petit  trea- 
son, cSfc.  standing  "  mute  of  malice  or  froward  mind,"  or  challenging  tSj-c,  shall  be  ex- 
eluded  from  clergy,  the  word  malice,  explained  by  the  accompanying  words,  seems  to 
signify  a  wickedness  or  frowardness  of  mind  in  refusing  to  submit  to  the  course  of  jus- 
tice;  in  opposition  to  cases  where  some  just  cause  may  be  assigned  for  the  silence,  as 
that  it  proceeds  from  madness,  or  some  other  disability  or  distemper.  And  in  the  statute 
21  Edw.  1.  De  malefactoribns  in  parcis,  trespassers  are  mentioned  who  shall  not  yield 
themselves  to  the  foresters,  dfc.  but  "  immo  malitiam  suam  prosequendo  et  continuando," 
shall  fly  or  stand  upon  their  defence.  And  where  the  question  of  malice  has  arisen  in 
cases  of  homicide,  the  matter  for  consideration  has  been  whetlicr  the  act  were  done  with 
or  without  just  cause  or  excuse;  so  that  it  has  been  suggested  that  what  is  usually  called 
malice,  implied  by  the  law,  would  perhaps  be  expressed  more  intelligibly  and  familiarly  to 
the  understanding  if  it  were  called  malice  in  a  legal  sense.  Malice,  "  in  its  legal  sense, 
denotes  a  wrongful  act  done  intentionally  without  just  cause  or  excuse."  I'er  Little- 
dale,  J.,  McPherson  v.  Daniels,  10  B.  i^  C.  272.  "  We  must  settle  what  is  meant  by  the 
term  malice.  The  legal  import  of  this  term  differs  from  its  acceptation  in  common  con- 
versation. It  is  not,  as  in  ordinary  speech,  only  an  expression  of  hatred  and  ill  will  to  an 
individual,  but  means  any  wicked  or  mischievous  intention  of  the  mind.  Thus  in  the 
crime  of  murder,  which  is  always  stated  in  the  indictment  to  be  committed  with  malice 
aforethought,  it  is  neither  necessary  in  support  of  such  indictment  to  show  that  the  pri- 
soner had  any  enmity  to  the  deceased,  nor  would  proof  of  absence  of  ill  will  furnish  the 
accused  with  any  dol'cnoe,  when  it  is  proved  that  the  act  of  killing  was  intentional,  and 
done  without  any  justifiable  cause."  Per  Best,  J.,  Rex  v.  Harvey,  2  B.  S(  C.  268.  1  Russ. 
on  Crimes,  483.  note  i.  See  4  Bl.  Com.  199.  1  East.  P.  C.  215. 1  Haivk.  P.  C.  c.  29.  s.  12. 


449  HISTORIA  PLACITORUM  CORONA. 

slaughter,  as  daily  experience  witnesseth,(fl)  and  they  may  not  find 
him  generally  not  guilly,  if  guilty  of  manslaughter.[3] 

In  an  appeal  of  murder  it  is  agreed  on  all  hands,  that  the  jury  may 
find  him  not  guilty  of  the  murder,  and  guilty  of  manslaughter;  this 
was  accordingly  ruled(i6)  P.  34  Eliz.  B.  R.  the  case  of  Wroth  and 
Wig,s;es,{c)  P.  5  Jac.  B.  R.  n.  20.  Pellet  and  Barendon,  P.  7.  Jac. 
B.  R.  n.  11. ;(^)  hut  it  hath  been  held,  that  altho  upon  an  indictment 
of  murder,  if  the  party  appear  to  be  guilty  of  manslaughter,  the  jury 
ought  not  to  acquit  him  generally,  but' find  him  guilty  of  manslaugh- 
ter; yet  in  an  appeal  of  murder,  tho  the  jury  may,  if  they  please,  find 
him  guilty  of  manslaughter,  if  the  fact  be  such,  yet  they 
[[450  ]  may  find  generally,  that  he  is  not  g^dlty,  because  it  is  the 
suit  of  the  party,  and  he  should  lay  his  case  according  to  the 
truth. 

With  this  agrees  H.  38  Eliz.  B.  R.  Penryn  and  Corbett,{e)  H. 
38  Eliz.  B.  R.  B.  183. (/)  M.  22  Jac.  B.  R.  L.  278.  Blount's 
case,(o-)  but  it  was  held  P.  2.  Car.  1.  in  Bassage's  case, (A)  that 
they  may  not  in  such  a  case  find  a  general  verdict  of  jiol  guilty,  but 
must  find  him  guilty  of  manslaughter,  because  included  in  murder, 
as  well  in  case  of  an  appeal,  as  in  case  of  an  indictment,  and  so  it 
seems  the  law  is. 

The  difference  betwe'en  the  offenses  of  murder  and  manslaughter 
seems  to  rest  in  these  particulars. 

1.  In  the  degree  and  quality  of  the  offense,  for  murder,  as  hath 
been  said,  is  accompanied  wiih  malice  forethought,  either  express 
or  presumed;  but  bare  homicide  is  upon  a  sudden  provocation  or 
falling  out. 

2.  A  lid  therefore  in  murder  there  may  be  accessaries  before,  as 
well  as  after,  because  ordinarily  it  is  an  act  of  deliberation,  and  not 
merely  of  sudden  passion;  but  in  bare  homicide  or  manslaughter 
there  can  be  no  accessaries  before,  tho  there  may  be  accessaries 
after,  and  therefore,  if  an  indictment  be  of  murder  against  ,/2.  and 
that  5.  and"  C  were  counselling  and  abetting  as  accessaries  before 
only,  (and  not  as  present,  aiding  and  abetting,  for  such  are  princi- 
pals, as  hath  been  said)  if  ^5.  be  found  guilty  only  of  homicide,  and 
acquit  of  the  murder,  the  accessaries  before  are  hereby  discharged. (4) 

(a)  See  Dalison  14.  (ft)  Or  ratlier  taken  for  granted. 

(c)  Cro.  Eliz.  276.     See  also  Cro.  Eliz.  296.  1  Sid.  325. 

{d)  These  two  cases  I  do  not  find  any  wiiere  among  the  printed  reports. 

(e)  Cm.  Eliz.  464. 

(/)  I  suppose  this  may  be  the  case  of  Gojf  and  Byhij,  Cro.  Eliz.  540. 

(g)  2  Roll.  Rep.  460.  (/t)  Latch.  126. 

Rex  V.  Grcenricre,S  Car.  Sf  P.  35.  Rrx  v.  Walters,  1  Car.  ^-  M.  164.  Reg.  v.  Kirkham, 
8  Car.  ^  P.  115.  7?^ir.  v.  Marryntt,  8  Car.  c^  P.  425.  Rex  v.  Self,  1  Lench,  137. 
Rex  V.  Bailey,  R.  &;  R.  ('.  C.  1.  Commonweallk  v.  Drew,  4  Mass.  391.  Respublica  v. 
Mulatto  Boh,  4  Dallas,  146.  Pennsylvania  v.  Lewis  Addison,  282.  Commonweulth  v. 
Green,  I  As/imcad,  289.  Coffee  v.  'J'/te  Slate,  3  Yerjrer,  283.  and  post  in  this  ciiapter  and 
chapter  37. 

[3]  Tills  is  unchanged  cither  in  England  or  the  United  Stales. 

[4J  Those  who  arc  charged  only  as  accessaries  before  the  fact,  when  the  principal  is 


HISTORIA  PLACITORUxM  CORONA.  450 

3.  The  indictment  of  murder  essentially  requires  these  words, /e/o- 
nich  ex  malitid  sua  prsecogitatd  interfecit  8^-  ninrdravit,  but  the 
indictment  of  simple  homicide  is  ouXy  felon  ice  interfecit. 

4.  Altho  at  common  law,  and  by  tlie  statute  of  25  E.  3.  cap.  4. 
clergy  was  promiscuously  allowed,  as  well  in  case  of  murder,  as  of 
homicide  and  manslaughter,  yet  by  the  statute  of  23  H.  8.  cap.  1. 
25  H.  8.  cap.  3.  1  £.  6.  cap.  12.  5  (§•  6.  E.  6.  cap.  10.  clergy  is  taken 
away  from  murder  ex  malitid  prxcogitald.[^5'\ 

Now  having  before,  cap.  33.  declared  those  things,  that 
are  common  to  the  oftenses  of  murder  and  manslaughter,  it  f  45L  ] 
remains,  that  I  consider  those  things,  that  are  specificial  and 
peculiar  to  murder,  which  is  what  shall  be  said  a  killing  ex  malitid 
pi'secogifatd,  or  what  in  law  is  said  such  a   malice,  as  makes  tlie 
offense  of  killing  a  person  thereby  to  be  murder. 

Such  a  malice  tlierefore,  that  makes  the  killing  of  a  man  to  be 
murder,  is  of  two  kinds,  1.  Malice  in  fact,  or  2.  Malice  in  law,  or 
ex  prscsximptione  legifs. 

]\lalice  in  fact  is  a  deliberate  intention  of  doing  some  corporal  harm 
to  the  person  of  another. 

Malice  in  law,  or  presumed  malice,  is  of  several  kinds,  viz.  1.  In 
respect  of  the  manner  of  the  homicide,  when  without  provocation. 
2.  In  respect  of  the  person  V\\^,viz.  a  minister  of  justice  in  execution 
of  his  office.     3.  In  respect  of  the  person  killing. 

Touching  the  first  of  these  in  this  chapter,  viz.  malice  in  fact. 

Malice  in  fact  is  a  deliberate  intention  of  doing  any  bodily  harm  to 
another,  whereunto  by  law  lie  is  not  authorized. 

The  evidences  of  such  a  malice  must  arise  from  external  circum- 
stances discovering  that  inward  intention, as  lying  in  wait,  menacings 
antecedent,  former  grudges,  deliberate  compassings,  and  the  like, 
which  are  various  according  to  variety  of  circumstances. 

It  must  be  a  compassing  or  designing  to  do  some  bodily  harm. [6] 

found  guilty  of  manslaughter,  cannot  be  punished,  because  that  necessarily  supposes  the 
fact  to  have  happened  on  a  sudden,  for  if  it  had  been  done  on  premeditation,  it  would 
have  been  murder.    4  Coke,  43,  44.    Moore,  461.     Da!t.  c.  108. 

Hawkins  suggests  that  under  the  law  of  principal  and  accessary  as  it  stood  before  the 
statute  1  Anne,  c.  9.  they  who  are  charged  as  accessaries  after  the  fact  should  be  dis- 
charged  at  common  law  when  the  principal  is  found  guilty  of  manslaughter,  and  admit- 
ted to  the  benefit  of  clergy,  because  in  such  case  it  could  not  appear  by  any"  judgment 
that  there  was  a  princioal.  2  Hawk.  c.  29.  s.  24.  3  Inst.  25.  Co,  Eliz.  540.  Fos- 
ter, 3G3.  ^ 

But  see  Rex  v.  Greenacre,  8  C.Sf  P.  35.  where  it  was  ruled  that  an  accessary  after  the 
fact  was  liable. 

[5]  For  the  English  statutes,  since  Hale's  time,  see  note  at  the  end  of  this  chapter,  454,  d. 

[6]  It  has  been  suggested  that  the  distinction  between  express  malice  (malice  in 
fact)  and  implied  malice  (malice  in  law,)  is  not  of  practical  importance.  It  is  not, 
perhaps,  in  a  tnere  classification  of  crime  with  reference  to  punishment,  but  as  an  aid 
to  the  ascertainment  of  guilt,  its  antiquity  and  frequent  observation  show  its  value. 
When  the  act  alleged  is  one  from  which  the  law  presumes  malice,  the  examination  of 
a  jury  may  be  confined  to  the  sirvgle  question  of  whether  or  not  the  act  was  committed, 
in  order  to  arrive  at  a  conclusion  of  the  guilt  or  innocence  of  the  accused.  It  is 
true  that  the  classification  of  murder  in  most  of  the  Untied  States  into  murder  of  the 
first  and  second  degrees,  usually  renders  it  necessary  fur  the  jury  in  their  deliberations, 


451  HISTORIA  PLACITORUM  CORONA. 

If  there  have  been  a  long  suit  in  law  between  A.  and  B.  either 
touching  interest  or  wrong  done,  as  if  A.  sue  B.  or  threaten  to  sue 
him,  this  alone  is  not  a  sufficient  evidence  of  mahce  prepense,  tho 
possibly  they  meet  and  fall  out,  and  fight,  and  one  kills  the  other,  if 


after  havin»  ascertained  that  the  party  is  gruilty  of  murder,  to  pursue  the  investigation  so 
as  to  deteruiine  to  which  degree  the  killing  belongs,  and  on  this  point  the  question  of 
intention,  which  is  the  great  test,  often  involves  substantially  the  points  connected  with 
the  malice  in  fact  of  the  text.  The  value  of  the  distinction,  as  applied  to  murder  gene- 
rally or  manslaughter,  remains  notwithstanding. 

Hawkins  says  that  express  malice  exists  in  such  murder  as  is  occasioned  through  an 
express  purpose  to  do  some  personal  injury  to  him  who  is  slain  in  particular.  As  to 
murder  in  this  sense,  sucii  acts  as  show  a  direct  and  deliberate  intent  to  kill  another,  as 
poisoning,  stabbing,  and  such  like,  are  clearly  murder.     1  Hawk.  P.  C.  31.  s.  19. 

Implied  malice  is  where  there  is  such  killing  as  happens  in  the  execution  of  an  unlaw- 
ful action,  principally  intended  for  some  other  purpose,  and  not  to  do  a  personal  injury  to 
him  in  particular  wlio  is  slain,  in  which  case  the  malice  seems  to  be  most  properly  said  to 
be  implied.  The  cases  which  have  borne  dispute  have  generally  happened  in  the  following 
instai^ces:  First,  in  duelling.  Secondly,  in  killing  another  without  any  provocation,  or 
but  upon  a  slight  one.  Thirdly,  in  killing  one  whom  the  person  killing  intended  to  hurt 
in  a  less  degree.   1  Hawk.  c.  'A\.  s.  20. 

Blackstone,  who  quotes  Hale  in  the  first  sentence,  and  follows  him  and  Hawkins,  says 
of  the  distinction  between  express  and  implied  malice:  "  Express  malice  is  when  one, 
with  a  sedate,  deliberate  mind  and  formed  design,  doth  kill  another:  which  formed 
design  is  evidenced  by  external  circumstances  discovering  that  inward  intention  ;  as  ly- 
ing in  wait,  antecedent  menaces,  former  grudges,  and  concerted  schemes  to  do  him  some 
bodily  harm.  Tjiis  takes  in  the  case  of  deliberate  duelling,  where  both  parties  meet 
avowedly  with  an  intent  to  murder.  Also,  if  even  upon  a  sudden  provocation  one  beats 
another  in  a  cruel  and  unusual  manner,  so  that  he  dies,  though  he  did  not  intend  his 
death,  yet  he  is  guilty  of  murder  by  express  malice;  that  is,  by  an  express  evil  design, 
the  genuine  sense  of  malitia.  As  when  a  park-keeper  tied  a  boy,  that  was  stealing 
wood,  to  a  horse's  tail,  and  dragged  him  along  the  park;  when  a  master  corrected  his' 
servant  with  an  iron  bar;  and  a  schoolmaster  stamped  on  liis  scholar's  belly;  so  that 
each  of  the  sufferers  died;  these  were  justly  held  to  be  murders,  because  the  correction 
being  excessive,  and  such  as  could  not  proceed  but  from  a  bad  heart,  it  was  equivalent 
to  a  deliberate  act  of  slaughter.  Neither  shall  he  be  guilty  of  a  less  crime,  who  kills 
another  in  consequence  of  such  a  wilful  act,  as  shows  him  to  be  an  enemy  to  all  man- 
kind in  general;  as  going  deliberately,  and  with  an  intent  to  do  mischief,  upon  a  horse 
used  to  strike,  or  coolly  discharging  a  gun  among  a  multitude  of  people.  So  if  a  man 
resolves  to  kill  the  next  man  he  meets,  and  docs  kill  him,  it  is  murder,  although  he  knew 
him  not;  for  this  is  universal  malice.  And,  if  two  or  more  come  together  to  do  an  un- 
lawful act  against  the  king's  peace,  of  which  the  probable  consequence  migiit  be  blood- 
shed, as  to  beat  a  man,  tq  conmiit  a  riot,  or  to  rob  a  park:  and  one  of  them  kills  a  man, 
it  is  murder  in  them  all,  because  of  the  unlawful  act;  the  malitia  prcacogilata,  or  evil 
intended  beforehand."    4  lU.  Com,  19!).        •  ,  . 

And  of  implied  malice,  he  adds:  "  In  many  cases  where  no  malice  is  expressed,  the 
law  will  imjjly  it:  as  where  a  man  wilfully  poisons  another,  in  such  a  deliberate  act  the 
law  presumes  malice,  though  no  particular  cnmil}'  can  be  [)r(Wed.  And  if  a  man  kills 
another  suddenly,  without  any,  or  without  a  considerable  provocation,  the  law  implies 
malice,  for  no  person,  unless  of  an  abandoned  hi^art,  would  be  guilty  of  such  an  act, 
upon  a  slight  or  no  apj)arent  cause.  No  affront,  by  words  or  gestures  only,  is  a  sufh- 
cicnt  provocation,  so  as  to  excuse  or  extenuate  such  acts  of  violence  as  manifestly  en- 
danger the  life  of  another.  But  if  tiie  person  so  provoked  had  unfortunately  killed  the 
other,  by  beating  him  in  such  a  manner  as  showed  only  an  intent  to  chastise  and  not  to 
kill  him,  tlic  law  so  far  considers  the  provocation  of  contumelious  behaviour,  as  to 
adjudge  it  only  manslaughter,  and  not  murder.  In  like  manner  if  one  kills  an  officer 
of  justice;,  either  civil  or  criminal,  in  tiie  execution  of  his  duly,  or  any  of  his  assistants 
endeavouring  to  conserve  the  peace,  or  any  private  person  endeavouring  to  suppress  an 
pffray  or  apprehend  a  felon,  knowing  his  authority  or  the  intention  with  which  he 
interposes,  the  law  will  imply  malice,  and  the  killer  shall  be  guilty  of  murder.    And  if 


HISTORIA  PLACITORUM  CORON^E.  451 

it  happen  upon  sudden  provocation ;  but  this  may  by  circumstances 
be  lieightened  info  a  malice  prepense,  as  if  .^.  without  any  new  pro- 
vocation strike  B.  U[)on  the  account  of  that  difference  in  law,  where- 
of B.  dies,  or  t  convcrso,  or  if  he  lie  in  wait  to  kill  him,  or  come 


one  intends  to  do  another  felony,  and  undesig-nedly  kills  a  man,  this  is  also  murder. 
Thus  if  one  shoots  at  A.  and  misses  him,  but  kills  B.  this  is  murder;  because  of  the 
previous  felonious  intent,  which  the  law  transfers  from  one  to  the  other.  The  same  is 
the  case  where  one  lays  poison  for  A.  and  B.  against  whom  the  prisoner  had  no  mali- 
cious intent,  takes  it,  and  it  kills  him;  this  is  likewise  murder.  So  also,  if  one  gives  a 
woman  with  child  a  medicine  to  procure  abortion,  and  it  operates  so  violently  as  to  kill 
the  woman,  this  is  murder  in  the  person  who  gave  it."    4  HI.  Com.  200. 

Roscoe,  Cr.  Ev.  579  ;  Archbold,  Cr.  PL  3d8;  and  Russell,  1  C.  S(  M.  482,  follow,  and 
quote  Hale  and  Hawkins. 

The  collections  of  cases  do  not  always  accurately  indicate  the  distinctions  between 
the  two  sorts  of  malice,  less,  perhaps,  in  Hale's  Pleas  of  the  Croicn,  than  in  the  more 
modern  works;  so  that  many  of  the  cases  which  might  be  introduced  in  the  notes  under 
the  head  of  malice  in  fact,  will  be  found  in  the  next  chapter,  being  there  put  the  more 
fully  to  illustrate  the  text. 

Whenever  malice  is  shown  to  exist,  the  offence  is  murder,  though  there  may  have 
been  intervening  provocation.  If  one  seek  another,  and  enter  into  a  fight  with  him, 
with  the  pur|)osc,  under  the  pretence  of  fighting,  to  stab  him;  if  a^omicide  ensue,  it  will 
be  clearly  murder  in  the  assailant,  no  matter  what  provocation  was  apparently  then 
given,  or  how  high  the  assailant's  passion  rose  during  the  combat,  for  the  malice  is  ex- 
press. Slate  v.  Ferguson,  2  Hill,  619.  Slate  v.  Lane,  4  Iredell,  113,  (N.  C'irolina.) 
So  if  ^.,  from  previous  angry  feelings,  on  meeting  with  B.  strike  him  with  a  whip,  with 
the  view  of  inducing  B.  to  draw  a  pistol,  or  believing  he  will  do  so  in  resentment  of  the 
insult,  and  determines,  if  he  do  so,  to  shoot  B.  as  soon  as  he  draws,  and  B.  does  draw, 
and  A.  immediately  shoots  and  kills  B.,  this  is  murder.     State  v.  Martin,  2  Iredell.  101. 

Blows  previously  received  will  not  extenuate  homicide-  upon  deliberate  malice  and 
revenge;  especially  where  it  is  to  be  collected  from  the  circumstances  that  the  pro- 
vocation was  sougiit  for  the  purpose  of  colouring  the  revenge.  Rex  v.  Mason,  1  East, 
P.  C.  239. 

If  a  party,  under  colour  of  fighting  upon  equal  terms,  uses  from  the  beginning  of  the 
contest  a  deadly  weapon,  without  the  knowledge  of  the  other  party,  whom  he  kills  with 
such  weapon;  or  if  at  the  beginning  of  tlic  contest  he  prepares  a  deadly  weapon,  so  as  to 
have  the  power  of  using  it  in  some  part  of  the  contest,  and  accordingly  does  so,  and  kills 
the  other  party ;  the  killing  in  both  these  cases  will  be  murder.  Rex  v.  Whiteley, 
1  Lewin,  C.  C.  173. 

If  a  person,  being  in  possession  of  a  deadly  weapon,  enter  into  a  contest  with  another, 
intending  at  the  time  to  avail  himself  of  it,  and  in  the  course  of  the  contest  actually  use 
it,  and  kill  the  other,  it  will  be  murder ;  but  if  he  did  not  intend  to  use  it  when  he  began 
the  contest,  but  used  it  in  the  heat  of  passion,  in  consequence  of  an  attack  made  upon 
him,  it  will  be  manslaughter.  If  he  use  it  to  protect  his  own  life,  or  to  protect  himself 
from  such  serious  bodily  harm  as  would  give  him  a  reasonable  apprehension  that  his  life 
was  in  immediate  danger,  having  no  other  means  of  defence,  and  no  means  of  escape, 
and  retreating  as  far  as  he  can,  it  will  be  justifiable  homicide.  Reg  v.  Smith,  8  Car.  Sc 
P.  160. 

If  A.  had  formed  a  deliberate  design  to  kill  B.,  and  afler  this  they  meet  and  have  a 
quarrel,  and  many  blows  pass,  and  A.  kill  B.,  this  will  be  murder,  if  the  jury  are  of  opi- 
hion  that  the  death  was  in  consequence  of  previous  malice,  and  not  of  the  sudden  provo- 
cation.    Reg  v.  Kirkham,  8  Car.  S^-  P.  115. 

Although  a  person  may  not  go  in  search  of,  or  lie  in  wait  for  another,  whom  he  kills, 
yet,  if  he  has  formed  the  purpose  to  kill  him,  and  within  a  short  time  afler  forming  and 
avowing  such  purpose,  he  duly  armed,  meets  the  other,  by  chance,  whether  in  public  or 
in  secret,  and  slays  him  immediately,  there  is  a  presumption  that  he  did  it  on  the  pre- 
vious  purpose  and  grudge,  if  there  be  no  evidence  of  a  change  of  purpose.  State  v.  Tilly^ 
3  Iredell,  424. 

When  a  deliberate  purpose  to  kill,  or  to  do  great  bodily  harm,  is  ascertained,  and  there 
is  a  consequent  unlawful  act  of  killing,  the  provocation,  whatever  it  may  be,  which  im- 


451  HISTORIA  PLACITORUM  CORONA. 

with  a  resolution  to  strike  or  kill  him,  for  in  such  a  ease  the  differ- 
ence in  the  law-suit,  (which  alone  makes  not  mahce)  is  coupled  and 

joined  with  circumstances,  that  prove  the  purpose  of  the 
[452  ]  party  was  more,  than  the  law  allows  in  a  legal  vindication 

of  wrong  done. 


mediately  precedes  the  act,  is  to  be  thrown  out  of  the  case  and  goes  for  nothing,  unless 
it  can  be  shown,  that  this  purpose  was  abandoned,  before  the  act  was  done.  Slate  v. 
Johnson,  1  Iredell,  354. 

If,  upon  a  provocation  received,  one  party  deliberately  and  advisedly  denounce  ven- 
geance against  the  other,  as  by  declaring  that  he  will  have  his  blood,  or  by  preparing  for 
the  conflict,  or  the  like,  and  afterwards  carry  his  design  into  execution,  he  will  be  guilty 
of  murder,  although  the  death  happened  so  recently  after  the  provocation,  as  that  the 
law  might,  apart  from  such  evidence  of  express  malice,  have  imputed  the  act  to  unad- 
vised passion.     1   Vent.  159.     Onely's  case,  2  Ld.  Raymond,  190. 

Thus,  where  two  persons  quarrel,  and  one  throws  a  brick-bat  at  the  other,  who  has 
privately  armed  himself  with  a  deadly  weapon,  and  keeps  it  concealed,  in  expectation  of 
the  affray,  and,  on  such  an  assault  being  made  upon  him,  immediately  draws  forth  the 
weapon,  and,  with  it,  kills  the  assailant,  though  then  retreating;  it  was  held,  that  a  ver- 
diet  of  murder  would  not  be  disturbed,  though  there  was  no  proof  of  previous  malice, 
malice  being  implied  from  tlie  res  gestcB,  and  from  the  preparation  of  the  defendant. 
Slaughter  v.  The  Conffuonwealth,  1  Leigh,  681. 

And  where  two  parties  had  previously  had  words,  and  a  general  challenge  to  fight 
passed,  and,  three  hours  afterwards,  the  defendant,  belonging  to  one  of  them,  renewed 
the  challenge,  which  was  accepted,  and  a  fight  ensued,  which  resulted  in  the  death  of 
one  of  the  other  party,  it  was  held  murder.  Commonwealth  v.  Crane,  General  Court  of 
Virginia,  Nov.  1791.  2  Wheeler'' s  cases,  587. 

Where  it  appeared  that  the  deceased  had  threatened  the  prisoner,  about  three  weeks 
before,  that  he  would  kill  him,  that  they  met  in  the  street,  on  a  star-light  night,  when 
they  could  see  each  other,  that  the  deceased  pressed  for  a  fight,  but  the  prisoner  retreated 
a  short  distance,  that  when  the  deceased  overtook  him  the  prisoner  stabbed  him  with 
some  sharp  instrument  which  caused  his  death,  and  that,  at  the  time  of  this  meeting,  the 
deceased  had  no  deadly  weapon,  it  was  held,  that  the  offence  was  murder.  State  \.  Scott, 
4  Iredell,  409.  ,  ._ 

Where  the  deceased,  after  being  married  for  some  years,  left  the  country;  and  his 
wife,  not  hearing  from  him  for  two  years,  marrieu  the  defendant,  though  not  under  cir- 
cumstances  which  would  make  the  second  marriage  legal  under  the  Pennsylvania 
statute,  and  the  deceased  returned,  after  a  lapse  of  a  year  from  the  second  marriage, 
and  found  his  wife  living  with  the  defendant,  upon  which  a  quarrel  arose,  which  was 
partially  composed,  but  wliicli  ended  in  the  defendant  deliberately  shooting  the  deceased 
at  his  own  house;  it  was  held  murder  in  the  first  degree.  Commonwealth  v.  Smith, 
7  Sniith''s  Pa.  Laws,  Appendix,  2  Whfieler''s  cases,  80. 

Where,  however,  fresh  provocation  occurs  between  pre-conccived  malice  and  death,  it 
ought  clearly  to  appear  that  the  killing  was  upon  the  antecedent  malice;  which  may  be 
difficult,  in  some  cases,  to  show  satisfactorily,  if  the  new  provocation  be  a  grievous  one. 
In  such  cases,  it  should  not  be  presumed  that  they  fought  on  the  old  grudge,  unless  it 
appear  by  the  whole  circumstances  of  the  fact.  But,  with  respect  to  poisoning,  that 
necessarily  im|ilics  malice,  however  great  the  provocation  may  have  been,  because  it  is 
a  deliberate  act,  though  no  other  proof  of  malice  exists.  1  Hank.  c.  31.  s.  30.  3  Inst. 
48.  4  Bl.  Com.  193-200.  F«.s/cr,  (J8.  Commonwealth  v.  Norton,  3  Boston  Law  Re. 
porter,  241.    Commonwr.nllh  v.  Kinney,  ihid.  405. 

By  the  common  law,  independent  of  all  local  legislation,  it  is  not  only  murder  for  one 
man  to  kill  another  in  a  duel,  but  his  second,  also,  is  guilty  of  murder:  and  the  better 
opinion  is  that  this  extends  even  to  the  second  of  him  who  was  killed,  because  the  death 
iiaj>pcned  u[>on  a  compact  in  which  all  were  engaged.     See  ante,  443,  and  post,  453. 

'i'o  make  a  man  principal  in  a  murder,  it  is  not  necessary  that  he  should  inflict  the 
mortal  wound.  It  is  sufficient  if  he  be  present,  aiding  and  abetting  the  act.  Nor  is  it 
nccesMary  that  there  should  be  a  particular  malice  against  the  deceased.  It  is  sufficient 
if  there  lie  drlihcrate  malignity  and  depravity  in  the  conduct  of  the  party.  U.  Slates  v. 
Ross,  1  Gallison.  C.  V.  R.  524. 


HISTORIA  PLACITORUM  CORONA.  452 

If  there  be  an  old  quarrel  betwixt  Ji.  and  B.  and  they  are  recon- 
ciled again,  and  then  upon  a  new  and  sudden  falling  out  A.  kills  B. 
this  is  not  murder,  but  if  upon  circumstances  it  appears,  that  the 
reconciliation  was  but  pretended  or  counterfeit,  and  that  the  hurt 
done  was  upon  the  score  of  the  old  malice,  then  it  is  murder. 

Malice  may  be  exerted  against  a  party  in  his  absence ;  as  where  A.  lays  poison  for  B. 
in  liis  victuals,  which  B.  afterwards  takes  and  dies.  So,  where  A.  procures  an  idiot  or 
lunatic  to  kill  B.,  whicli  he  does.  In  both  instances  A.  is  guilty  of  the  murder  as  prin- 
cipal, and  B.  is  merely  an  instrument.  Fauar's  case,  4  Coke^  446.  Rex  v.  Giles, 
1  Moodij,  C.  C.  166.     Hawkins,  c.l.s.2.  ^ 

Most  of  the  above  cases  on  the  subject  of  express  malice  are  collected  in  Wharton^s 
Am.  Cr.L.p.22't-9. 

If  two  persons  fight,  and  one  overpower  the  other,  and  knock  hfm  down,  and  put  a 
rope  round  his  neck  and  strangle  him,  this  will  be  murder.  Rex  v.  Shaw,  6  Car. 
4"  p.  372. 

If  persons  cover  another  with  straw  and  set  fire  to  it,  intending  to  do  him  a  serious 
injury,  and  he  die,  it  is  murder,  though  they  did  not  intend  to  kill  him.  But  if  they 
intended  to  act  in  sport,  and  merely  to  frighten  him,  it  is  manslaughter.  Eriingtori's 
case,  2  Lewin,  C.  C.  217. 

Semble,  that  where  guns  are  fired  by  one  vessel  at  another  vessel,  and  those  on  board 
her  generally,  those  guns  are  to  be  considered  as  shot  at  each  individual  on  board  her. 
Rex  v.  Bailey,  R.  Sf  R.  C.  C.  1.    1  Russ.  C.  Sf  M.  109. 

If  a  person  being  attacked  should,  from  an  apprehension  of  immediate  violence — an 
apprehension  which  must  be  well  grounded  and  justified  by  the  circumstances — throw 
himself  for  escape  into  a  river,  and  be  drowned,  the  person  attacking  him  is  guilty  of 
murder.    Reg.  v.  Pitts,  1  Car.  Sf  M.  284. 

If  a  master,  by  premeditated  negligence,  or  harsh  usage,  cause  the  death  of  his  ap- 
prentice, it  is  murder.     Rex  v.  Self,  1  Leach,  C.  C.  137;  1  East,  P.  C.  226. 

It  is  murder  to  cause  the  death  of  an  infant  of  tender  years,  unable  to  provide  food  for 
and  take  care  of  itself,  by  not  providing  sufficient  food  and  nourishment,  whether  such 
infant  be  child,  apprentice  or  servant,  whom  the  party  is  obliged  by  duty  or  contract  to 
provide  for.     Rex  v.  Squires,  1  Russ.  C.  Sf  M.  426. 

Where  a  person  in  loco  parentis,  inflicts  corporal  punishment  on  a  child,  and  compels 
it  to  work  for  an  unreasonable  number  of  hours,  and  beyond  its  strength,  and  the  child 
dies,  the  deatii  being  of  consumption,  but  hastened  by  the  ill-treatment,  it  will  not  be 
murder,  but  only  manslaughter  in  the  person  inflicting  the  punishment,  although  it  was 
cruel  and  excessive,  and  accompanied  by  violent  and  threatening  language,  if  such  per- 
son  believed  that  the  child  was  shamming  illness,  and  was  really  able  to  do  the  quantity 
of  work  required.     Rex  v.  Cheeseman,  7  Car.  Sf  P.  454. 

On  an  indictment  for  the  murder  of  an  aged  and  infirm  woman,  by  confining  Ijer' 
against  her  will,  and  not  providing  her  with  meat,  drink,  clothing,  firing,  medicines,  and 
other  necessaries,  and  not  allowing  her  the  enjoyment  of  the  open  air,  in  breach  of  an 
alleged  duty;  if  the  jury  think  that  the  prisoner  was  guilty  of  wilful  neglect,  so  gross 
and  wilful  that  they  are  satisfied  he  must  have  contemplated  her  death,  he  will  be  guilty 
of  murder;  but  if  they  only  think  that  he  was  so  careless  that  her  death  was  occa- 
sioned by  his  negligence,  though  he  did  not  contemplate  it,  he  will  be  guilty  of  man- 
slaughter.    Reg.  v.  Marriott,  8  Car.  Sf  P.  425. 

If  a  woman  left  her  child,  a  young  infant,  at  a  gentleman's  door,  or  other  place  where 
it  was  likely  to  be  found  and  taken  care  of,  and  tiie  child  died,  it  would  be  manslaughter 
only;  but  if  the  cliild  were  left  in  a  remote  place,  where  it  was  not  likely  to  be  found, 
e.g.  on  a  barren  heath,  and  the  death  of  the  child  ensued,  it  would  be  murder,    lb. 

If  a  person  do  an  act  towards  another  wlio  is  helpless,  which  must  necessarily  lead  to 
the  death  of  tiiat  other,  the  crime  amounts  to  murder;  but  if  the  circumstances  are 
such  that  the  person  could  not  have  been  aware  that  the  result  would  be  death,  that 
would  reduce  the  crime  to  manslaughter,  provided  that  the  death  was  occasioned  by  an 
unlawful  act,  but  not  such  an  act  as  showed  a  malicious  mind.  Reg-  v.  Walters, 
1  Car.  Sf  M.  1  64. 

"Malice  is  express"  (says  Chief  Justice  Parsons,  Selfridire's  Trial,  p.  5.)  "where  there 
was  a  premeditated  intention  to  kill.     Malice   is  implied  when  tiie  killing  is  attended 


452  HISTORIA  PLACITORUM  CORONA. 

« 
If  there  be  malice  by  Ji.  against  B.  and  by  B.  against  A.  and 
they  meet,  and  upon  the  account  of  that  malice  A.  strii^es  B.  and  B. 
thereupon  kills  Ji.  (otherwise  than  in  his  own  necessary  defense)  it 
is  murder  in  B.  but  if  they  meet  accidently,  and  Ji.  assaults  B.  first, 
and  B.  merely  in  his  own  defense,  witliout  any  other  malicious 
design  kills  Ji.  this  is  not  murder  in  B.  for  it  was  not  upon  the  ac- 
count of  the  former  malice,  but  upon  a  new  and  siidden  emergency 
for  the  safe-guard  of  his  life;  but  if  ,/?.  and  B.  had  met  deliberately 
lo  fight,  and  A.  strikes  B.  and  pursues  B.  so  closely,  that  B.  in  safe- 
guard of  his  own  life  kills  A.  this  is  murder  in  B.  because  their 
meeting  was  a  compact,  and  an  act  of  deliberation,  and  therefore 
all,  that  follows  thereupon,  is  presumed  to  be  done  in  pursuance 
thereof,  and  thus  is  Mr.  Ballon,  cap.  93.  p.  241. (e)  to  be  under- 
stood. 

But  yet  qusere,  whether  if  B.  had  really  and  truly  declined  the 
fight,  ran  away  as  far  as  he  could,  (suppose  it  half  a  mile,)  ofFerd  to 

(i)  New  Edit,  cap.  145.  p.  471. 


with  circumstances  which  indicate  great  wickedness  and  depravity  of  disposition,  a 
heart  void  of  social  duty  and  fatally  bent  on  mischief."  "  Malice  is  implied,"  says 
Mr.  East^  "  from  any  deliberate  act.  however  sudden."  And  he  adds,  (225.)  "  He  who 
wilfully  and  deliberately  does  any  act  which  apparently  endangers  another's  life,  and 
thereby  occasions  his  death  shall,  unless  he  clearly  prove  the  contrary,  be  adjudged  to 
kill  him  of  malice  prepense."  "  Malice,"  says  Judge  Addison,  quoted  and  approved 
by  Judge  Rush,  (trial  of  Richard  Smith,  in  Philadelphia,  for  murder  of  John  Carson, 
May,  1816,  p.  83.)  "is  a  deliberate,  wicked,  vindictive  temper,  regardless  of  social 
duty,  and  bent  on  miscliief.  When  a  wilful  killing  is  proved,  the  law  presumes  malice, 
unless  the  killer  prove  the  contrary,"  {page  84.)  Deliberate  killing  witliout  passion, 
whatever  may  have  been  the  provocation,  is  murder.  In  pape  231  it  is  said,  the  law 
does  not  fix  the  time  of  such  deliberation.  "  If  the  defendant  has  time  to  think,"  said 
Judge  Rush,  in  that  trial,  {pa<re  231.)  "  and  did  intend  to  kill  for  a  minute,  as  well  as 
for  an  hour  or  a  day,  it  is  a  deliberate,  premeditated  killing,  constituting  murder.  To 
deliberate  is  to  reflect  with  a  view  to  make  a  choice,  and  a  reflection  but  for  a  minute 
is  a  sufficient  deliberation.  No  time  is  too  short  for  a  wicked  man  to  frame  in  his 
mind  a  scheme  of  murder,  and  to  contrive  the  means  of  accomplishing  it." 

If  a  man,  says  Chief  Justice  Parker,  in  Philips^  Trial,  45,  kills  another  suddenly  with 
slight  or  no  provocation,  the  law  implies  malice. 

Foster  says,  (Crown  Law,  380,)  malice  is  implied  where  an  officer  is  killed  in  the  law- 
ful discharge  of  his  duty.  Lord //aZe  expresses  it  rather  more  strongly:  "To  kill  an 
officer  in  the  faithful  discharge  of  his  duty,  is  murder,  and  the  law  will  imply  the  highest 
dvgree  of  malice,"  post,  465. 

Malice  may  also  be  inferred  from  the  instrument  used,  the  mode  in  which  the  weapon 
was  obtained  and  selected,  especially  if  it  was  the  best  choice  for  the  purpose;  the 
manner,  too,  in  which  the  wea|)on  was  used,  the  repetition  of  dangerous  wounds,  the 
choice  of  vital  spots  for  those  wounds,  and  the  perseverance  in  the  assault  until  death 
be  produced  ;  these  are  all  circumstances  indicative  of  malice.  Deliberate  malice  may 
also  be  seen  in  the  mode  of  attack,  the  time  selected  for  it  when  the  victim  is  off  hfs 
guard,  when  he  has  no  o]>portunity  for  self  defence,  when  stabs  are  given  from  behind) 
pursuing  a  man,  selecting  him  from  among  others,  advancing  on  him  in  a  studied,  cir- 
cuitous manner  which  could  not  be  perceived,  intercepted,  or  prevented,  also  show  calcu- 
lation, deliberation,  and  malice. 

Finally,  ifthere  was  cause,  real  or  imaginary,  for. resentment ;  if  the  purpose  of  killing 
was  long  harboured;  if  no  motive  but  revenge  can  be  assigned  for  the  fatal  deed;  if  re- 
venge was  harboured,  and  if  previous  threats  have  been  made,  these  facts  would  be  evi- 
dcnee  of  express  malice. 


HISTORIA  PLACITORUM  CORONA.  452 

yield,  and  yet  A.  refusing  to  decline  it  had  attempted  his  death,  and 
B.  after  all  this  kills  A.  in  his  own  defence,  whether  it  excuseth  him 
from  murder;  but  if  the  running  away  were  only  a  pretense  to  save 
his  own  life,  but  was  really  designed  to  draw  out  A.  to  kill  him,  it 
were  murder. [7] 

Ji.  commands  B.  to  kill  C.  and  before  the  act  done  repents,  and 
countermands  B.  and  charges  him  not  to  do  it,  yet  B.  doth  it,  Ji.  is 
not  guilty.   Coke  P.  C.  p.  51. 

A.  challenges  C.  to  meet  in  the  field  to  fight,  C  declines  it  as 
much  as  he  can,  but  is  threatened  by  A.  to  be  posted  for  a  coward, 
4-c.  if  he  meet  not,  and  thereupon  A.  and  B.  his  second, 
and  C.  and  D.  his  second,  meet  and  fight,  and  C.  kills  A.  [453] 
this  is  murder  in  C.  and  D.  his  second,  and  so  ruled  in  P. 
14  Jac.  in  2\ivernerh  case,(A^)  tho  C.  unwillingly  accepted  the  chal- 
lenge.[S] 

But  if  it  seems  not  to  be  murder  in  B.  because  tho  he  had  malice 
against  C.  and  D.  his  opponents,  yet  he  had  none  against  ./?.  tho 
some  have  thought  it  to  be  murder  also  in  B.  because  done  by  com- 
pact and  agreement.   22  Eliz.  3.  262.  sed  quaere  de  Aoc.[9] 

If  A.  challenge  B.  to  fight,  B.  declines  the  challenge,  but  lets  A. 
know,  that  he  will  not  be  beaten,  but  will  defend  himself;  if  B. 
going  about  his  occasions  wears  his  sword,  is  assaulted  by  A.  and 
kild,  this  is  murder  in  A.  but  if  B.  had  kild  A.  upon  that  assault,  it 

(it)  1  Rol.  Rep.  360.  3  Bui.  171. 


[7]  This  quere  of  lord  Hale  is  discussed  by  Mr.  East,  and  it  is  observed  that  Black- 
atone  (4  Bl.  Com.  185,)  expressly  puts  the  same  case  of  a  duel  as  Hale,  but  does  not 
subjoin  the  same  doubt;  and  that  it  was  considered  as  settled  law  by  tlie  Cliief  Justice 
in  Onely^s  case,  {Ld.  Raymond,  1489.)  Mr.  East,  after  reasoning  in  extenuation  of  the 
crime  of  one  so  declining  to  tight,  proceeds  thus  :  "Yet  still  it  may  be  doubtful,  whether, 
admitting  the  full  force  of  this  reasoning,  the  offence  can  be  less  than  manslaughter,  or 
whether  in  such  case  the  party  can  altogether  excuse  himself  upon  tlie  foot  of  necessity 
in  self-defence,  because  the  necessity  which  was  induced  from  his  own  faulty  and  illegal 
act,  namely,  the  agreement  to  fight,  was  in  the  first  instance  deliberately  foreseen  and 
resolved  upon,  in  defiance  of  the  law."     1  East,  P.  C.  c.  5.  s.  54.  p.  284. 

[8]  Upon  this  principle,  deliberate  duelling  if  death  ensuelh,  is  in  the  eye  of  the  law 
murder;  for  duels  are  generally  founded  in  deep  revenge;  and  though  a  person  should 
be  drawn  into  a  duel,  not  upon  a  motive  so  criminal,  but  merely  upon  the  punctilio  of 
what  the  swordsmen  falsely  call  honour,  that  will  not  excuse;  for  he  that  deliberately 
seeketh  the  blood  of  another  upon  a  private  quarrel,  actetli  in  defiance  of  all  laws, 
human  and  divine,  whatever  his  motive  may  be.  Foster,  297.  1  Hawk.c.  31.  s.  21,  22- 
29.    4  Bl.  Com.  191.    3  Inst.  51.    Lord  Morlei/s  case,  7  St.  Tr.  421. 

Both  principals  and  seconds  are  liable  for  murder  if  either  of  the  parties  are  killed, 
all  being  engaged  in  an  unlawful  act,  having  for  its  direct  object  the  taking  of  life. 
The  old  view,  that  the  second  of  the  killed  is  not  liable,  is  now  not  law,  if  it  ever  was. 
Rrg.  V.  Young.  8  Car.  &;  P.  644.  See  also  Smith  v.  The  State,  1  Yerger,  228.  Rex  v. 
Rice,  3  East,  581.     Rex  v.  Murphy,  6  C.  Sf  P.  103.  1  Rol.  Rep.  360.  ante,  443. 

If,  however,  the  comhat  is  not  deliberate,  but  the  immediate  consequence  of  sudden 
quarrel,  it  does  not  fall  within  this  doctrine,  and  must  be  judged  of  by  the  circum- 
stances attending  the  particular  case.     Foster,  295.   1  East,  P.  C.  242. 

[9]  The  later  cases  consider  all  present,  aiding  and  abetting,  alike  guilty  of  murder, 
and  do  not  recognise  the  distinction  made  in  the  text.  See  ante,  p.  443,  and  p.  453, 
note. 

VOL.  I.— 39 


453  HISTORIA  PLACITORUM  CORONA. 

had  been  se  defendetido,  if  he  could  not  otherwise  escape,  or  bare 
homicide,  if  he  could  escape,  and  did  not. 

But  if  B.  had  only  made  this  as  a  disguise  to  secure  himself  from 
the  danger  of  the  law,  and  purposely  went  to  the  place,  where  pro- 
bably he  might  meet  ./?.  and  there  they  fight,  and  he  kills  »/?.  then  it 
had  been  murder  in  B.  but  herein  circumstances  of  the  fact  must 
guide  the  jury. 

If  ./?.  and  B.  fall  suddenly,  out,  and  they  presently  agree  to  fight 
in  the  field,  and  run  and  fetch  their  weapons,  and  go  into  the  field 
and  fight,  and  ./?.  kills  B.  this  is  not  murder  but  homicide,  for  it  is 
but  a  continuance  of  the  sudden  falling  out,  and  the  blood  was 
never  cooled ;  but  if  there  were  deliberation,  as  that  they  meet  the 
next  day,  nay,  tho  it  were  the  same  day,  if  there  were  such  a  com- 
petent distance  of  time,  that  in  common  presumption  they  had  time 
of  deliberation,  then  it  is  murder.  Co.  P.  C.  p.  51.  Jac.  B.  R.  Ferrer^s 
case,  Al.  8  Jac.  B.  R.  Morgan'' s  case. [10] 

A.  the  son  of  B.  and  C.  the  son  of  D.  fall  out  in  the  field  and 
fight,  A.  is  beaten,  and  runs  home  to  his  father  all  bloody,  B.  pre- 
sently takes  a  staff,  runs  into  the  field,  being  three-quarters  of  a 
mile  distant,  and  strikes  C  that  he  dies,  this  is  not  murder  in  B. 
because  done  in  sudden  heat  and  passion.  T.  9  Jac.  B.  R,  12  Co. 
Rep.  p.  87.(/)[ll] 

(Z)  Cro.  Jac.  296.  Royleifs  case. 

[10]  Foster,  296.  Rex  v.  Lynch,  5  C.  4"  P.  324.  Reg.  v.  Kiikham,  8  C.  Sf  P.  115. 

[11]  In  every  case  of  homicide  upoa  provocation,  how  great  soever  it  be,  it' there  is  suffi- 
cient  time  for  passion  to  subside,  and  for  reason  to  interpose,  sucii  homicide  will  be  mur- 
der. A.  findelh  a  man  in  the  act  of  adultery  with  his  wife,  and  in  the  first  transport  of 
passion  kiUeth  liim;  this  is  no  more  than  manslaughter.  But  had  he  killed  the  adulterer 
deliberately  and  upon  revenge  after  the  fact  and  sufficient  cooling  time,  it  had  been  un- 
doubtedly murder.  For  let  it  be  observed,  that  in  all  possible  cases  deliberate  homicide 
upon  a  principle  of  revenge  is  murder.  No  man  under  the  protection  of  the  law  is  to  be 
the  avenger  of  his  own  wrongs.  If  they  are  of  such  a  nature  for  which  the  laws  of  so- 
cicty  will  give  him  an  adequate  remedy,  thither  he  ought  to  resort.  But  be  they  of  what 
nature  soever,  he  ought  to  bear  his  lot  with  patience,  and  remember  that  vengeance  be- 
longeth  only  to  the  Most  High.  1   Vent,  158.  Sir  T.  Raijm.  212, 

But  if,  upon  a  sudden  quarrel,  the  parties  fight  upon  the  spot,  or  if  they  presently 
fetch  their  weapons  and  go  into  the  field  and  figlit,  and  one  of  tlicm  falleth,  it  will  be  but 
manslaughter;  because  it  may  be  presumed  the  blood  never  cooled.  It  will  be  otiierwise 
if  they  ap[)()iiit  to  fight  the  ne.\t  day,  or  even  upon  the  same  day  at  such  an  interval  as 
that  llie  jiassion  might  have  subsided:  or  if  from  any  circumstances  attending  the  case 
it  may  be  reasonably  concluded,  that  their  judgment  had  aetnully  controlled  the  first 
trans])orts  of  passion  before  they  engaged,  'i'he  same  rule  will  hold,  if  after  a  quarrel 
tiiey  liiU  into  other  discourse  or  diversions,  and  continue  so  engaged  a  reasonable  time 
for  cooling.  Foster,  297.  AeZ.  27.  1 /i«icA:,  c.  31.  s.  22,  29.  4  /«.  Com.  191.  ^  Inst.  51. 
1  Bulut,  86.     See  Murlcy's  case,  7  St.  Tr.  421.  Croinp.  23.     Kel.  56. 

Where  a  man  assailed  has  retreated  from  the  assailant,  and  is  secure  in  his  separation 
from  further  personal  aggression,  he  has  no  right  to  return  armed  to  the  scene  of  con- 
fliet,  and  voluntarily  engage  in  a  new  contest  with  the  aggressor.  If  he  do  so,  and  slay 
liiin,  he  is  guilty  of  miarder  or  munslaughler,  according  to  the  circumstances  under 
which  the  homicide  is  committed.  If,  on  receiving  such  a  deadly  assault,  he  suddenly 
leave  the  scene  of  outrage,  procure  arms,  and  in  the  heat  of  blood  consequent  upon  the 
wrong,  return  and  renew  the  combat,  and  slay  his  adversary,  both  being  armed,  sucii  an 
homicide  would  be  hut  manslaughter.  For  the  law  from  its  sense  of  and  te  iderness  to- 
wards human  infirmity,  would  consider  that  sufficient  time  had  not  elapsed  for  the  blood 


HISTORIA  PLACITORUM  CORONiE.  454^ 

A  boy  came  into  Osterhj  park  to  steal  wood,  and  seeing  the 
woodward  climbs  up  a  tree  to  hide  himself,  the  woodward  bids 
him  come  down,  he  comes  down,  and  the  woodward  struck  iiiin 


to  cool  and  reason  to  resume  its  empire  over  the  mind,  smarting  under  the  original 
wrong.  Com.  v.  Hare,  4  Penn.  Law  Jour.  257.  The  law  assigns  no  limits  within  which 
cooling  time  may  be  said  to  take  place.  Every  case  must  depend  on  its  own  circum- 
stances, Coin.  V.  Dougherty,  7  Smith's  Law,  695,  but  the  time  in  which  an  ordinary 
man,  in  like  circumstances,  would  have  cooled,  may  be  said  to  be  the  reasonable  time. 
Stale  V.  MCards,  1  Spear,  384. 

In  1725,  John  Onelij  was  indicted  for  the  murder  o^  William  Gower,  and  a  special  ver- 
dict was  found,  stating  that  the  prisoner,  being  in  company  with  the  deceased  and  three 
other  persons  at  a  tavern  in  a  friendly  manner,  after  some  time  began  playing  at  hazard, 
when  Rich,  one  of  tlie  company,  asked  if  any  one  would  set  him  three  half-crowns, 
whereupon  the  deceased,  in  a  jocular  manner,  laid  down  three  half-pence,  telling  Rich 
he  had  set  him  tliree  pieces,  and  the  prisoner  at  the  same  time  set  Rich  three  half- 
crowns,  and  lost  them  to  him;  immediately  after  which  the  prisoner,  in  an  angry  man- 
ner, turned  about  to  the  deceased,  and  said,  "it  was  an  impertinent  thing  to  set  half- 
pence, and  that  he  was  an  impertinent  puppy  for  so  doing;"  to  which  the  deceased 
answered,  "whoever  called  him  so  was  a  rascal."  Thereupon  tlie  prisoner  took  up 
a  bottle,  and  witli  great  force  threw  it  at  the  deceased's  head,  but  did  not  hit  him, 
the  bottle  only  brushing  some  of  the  powder  out  of  his  hair.  The  deceased,  in  return, 
immediately  tossed  a  candlestick  or  bottle  at  the  prisoner,  which  missed  him;  upon 
wiiich  lliey  both  rose  up  to  fetch  their  swords,  which  then  hung  up  in  the  room,  and  the 
deceased  drew  his  sword,  but  the  prisoner  was  prevented  from  drawing  liis  by  the  com- 
pany; tlie  deceased  thereupon  tlirew  away  his  sword,  and  the  company  interposing, 
they  sat  down  again  for  the  space  of  an  hour.  At  the  expiration  of  that  time  the  de- 
ceased said  to  the  prisoner,  "  we  have  had  hot  words,  but  you  were  the  aggressor;  but  I 
think  we  may  pass  it  over,  and  at  the  same  time  offered  his  hand  to  the  prisoner,  who 
made  answer,  "No,  damn  you,  I  will  have  your  blood;"  after  which,  the  reckonino- 
being  paid,  all  the  company  except  the  prisoner  left  the  room;  but  he,  calling  back  the 
deceased,  closed  the  door,  and  the  rest  of  the  company,  shortly  after,  hearing  a  clashing 
of  swords,  found  the  deceased  had  received  from  the  prisoner  a  mortal  wound.  It  was 
further  found,  that  from  the  throwing  of  the  bottles  there  had  been  no  reconciliation. 
Upon  these  facts  all  the  judges  were  of  opinion,  that  the  defendant  had  been  guilty  of 
murder,  and  that  from  the  period  which  had  elapsed  there  had  been  reasonable  time  for 
cooling. 

In  delivering  the  opinion  in  this  case,  Raymond,  C.  J.  discussed  the  subject  of  coolino- 
time  at  length,  and  said,  among  other  things,  that  "  in  cases  of  this  nature  the  judges 
are  to  determine  what  is  malice,  or  what  is  a  reasonable  time  to  cool;  and  they  must  do 
it  upon  the  circumstances  of  the  case;  the  jury  are  judges  only  of  the  fact,  and  we 
must  determine  whether  it  be  deliberate  or  not.  Hence  it  is,  that  in  summing  up  an 
evidence,  the  judges  direct  the  jury, — if  you  believe  such  a  fact,  it  is  so;  if  not,  it  is 
otherwise;  and  they  find  either  a  general  or  a  special  verdict  upon  it.  There  is  no 
instance  where  the  jury  ever  found  that  the  fact  was  done  of  malice,  or  that  the  party 
had  or  had  not  time  to  cool;  but  that  must  be  left  to  the  judges  upon  the  circumstances 
of  the  case.  In  Holloway^s  case,  it  was  left  to  the  court  to  determine  whether  the  tying 
the  boy  to  the  horse's  tail  was  not  a  malicious  act.  So  in  the  case  of  the  two  boys  who 
had  quarrelled,  and  the  father  ran  after  one  of  them  and  killed  him,  the  court,  and  not 
the  jury,  determined  whether  it  was  malice  or  not.    Palm.  545. 

In  Bromicick's  case,  1  Lev.  180,  the  declining  an  immediate  encounter,  because  of 
the  disadvantage  of  his  high  heels,  was  held  to  be  a  deliberate  act,  that  manitestcd  a 
coolness :  and  the  same  has  been  held,  where  the  parties  have  debated  about  the  cou- 
veniency  of  place.     A'e/yng,  56. 

If  A.  says  to  B.  I  will  give  you  a  pot  of  ale  to  strike  me,  and  B.  strikes  hi-hi,  and 
immediately  A.  kills  B  ,  it  is  murder;  for  A.  knew  what  he  was  about,  and  deliberated 
with  himself  how  he  might  perpetrate  the  fact,  and  be  at  the  same  time  (as  he  thought) 
witliin  the  protection  of  the  law.    Crnmp.  49. 

From  all  which  cases  it  appears,  that  though  the  law  of  England  is  peculiarly  favour- 
able  m  making  this  distinction  with  regard  to  the  passions  of  men,  yet  it  must  be  such 
a  paission  as  for  the  time  deprives  a  man  of  the  exercise  of  his  reason ;  and  wherever  it 


454^  HISTORIA  PLACITORUM  CORONA. 

twice,  and  then  bound  him  to  his  horse-tail,  and  dragged  him  till 
liis  shoulder  was  broke,  whereof  he  died;  it  was  ruled  murder,  be- 


has  appeared  that  he  had  the  exercise  of  his  reason,  he  is  out  of  the  protection  of  the 
law,  and  has  been  held  guilty  of  murder.  Here  was  a  reasonable  titne  to  cool,  and  it  is 
plain  it  had  its  operation :  the  prisoner  was  cool  enough  to  discourse  for  an  hour;  he  de- 
termined in  his  own  mind  upon  deliberation  what  he  would  do;  and  declared  his  inten- 
tion in  those  bitter  and  deliberate  expressions :  '*  No,  he  would  not  pass  it  over,  damn 
him,  he  would  have  his  blood;"  the  young  man  must  come  back,  for  he  had  something 
to  say  to  him.  The  interchange  of  blovv's,  where  there  is  malice,  will  make  no  altera- 
tion :  it  does  not,  indeed,  appear  who  struck  first  upon  his  returning  into  the  room  ;  but 
it  is  sufficient  that  the  verdict  finds  no  act  inconsistent  with  the  malicious  declaration  of 
the  party;  nor  can  the  declaration  of  the  party  deceased  avail  in  this  case,  for  that  goes 
only  to  his  receiving  the  wound  in  a  fair  manner  with  regard  to  the  nature  of  the  com- 
bat."   Rex  V.  Onely,  2  Strange,  766.  , 

Where  the  defendant,  having  been  violently  beaten  and  abused,  made  his  escape,  ran 
to  his  house,  eighty  yards  off,  got  a  knife,  ran  back,  and  on  meeting  with  the  deceased, 
stabbed  him,  it  was  held  but  manslaughter;  but  it  was  said  that  if,  on  the  second 
meeting,  the  defendant  had  disguised  the  fact  of  having  a  weapon  for  the  purpose 
of  inducing  the  deceased  to  come  witliin  his  reach,  it  would  have  been  murder,  such 
concealment  affording  ground  for  the  presumption  of  dehberation.  Slate  v.  Norris, 
1  Bay,  429. 

In  order  to  mitigate  a  homicide,  committed  in  a  second  combat,  by  vi^hat  oc- 
curred at  a  previous  one,  which  had  fairly  began  on  the  sudden,  both  contests  must 
be  considered  as  making  one  combat,  or  the  first  as  a  separate  combat,  must  be  con- 
sidered as  a  sufficient  sudden  provocation  for  either  a  second  combat,  or  for  a  sub- 
sequent attack  producing  a  contest  not  entitled  to  be  called  a  mutual  combat.  Where 
it  appeared  that  the  prisoner  and  the  deceased,  alter  having  been  engaged  in  mutual 
combat,  on  sudden  occasion,  fairly  begun,  were  separated  at  the  request  of  the  priso- 
ner, who  was  overcome  and  beaten  in  the  contest;  that  the  prisoner  was  held  by  one 
of  the  persons  present,  but  drew  his  knife  and  swore  he  would  kill  the  deceased ;  that 
after  releasing  himself  from  the  person  holding  him,  he  pursued  the  deceased,  who  had 
left  the  place  of  combat,  and  who,  upon  being  apprized  of  the  pursuit  by  a  call  from 
the  person  holding  the  prisoner,  left  the  road  on  which  he  was  walking,  and  provided 
himself  with  a  rail  from  a  neighbouring  fence;  that  on  his  return  towards  the  road  he 
met  the  prisoner,  gave  back  and  struck  liim  several  blows  upon  the  head  as  he  rushed 
on,  with  the  rail,  which,  breaking  some  ten  paces  from  the  point  where  the  deceased 
began  to  give  back,  the  prisoner  closed  and  inflicted  the  mortal  blow;  and  that  suffi- 
cient time  liad  transpired,  not  only  for  the  deceased  to  adjust  himself  after  the  fight 
and  walk  deliberately  two  hundred  and  twenty-five  yards,  but  for  the  prisoner  after- 
wards to  pass  over  the  same  ground,  as  also  for  a  person  at  a  neighbouring  house, 
within  hearing  of  the  noise  of  the  second  quarrel,  to  reach  the  place  of  strife.  The 
court,  under  this  state  of  facts,  were  of  opinion,  that  both  contests  could  not  have  con- 
stituted one  combat,  nor  could  the  second,  in  which  the  prisoner  rushed  with  his  drawn 
knife  upon  his  adversary,  who  had  snatched  the  readiest  means  of  defence  at  hand, 
but  was  neither  equally  armed,  nor  willing  to  meet  such  a  weapon,  have  been  that  fair 
struggle  which  the  law  denominates  a  mutual  combat.  The  jury  having  found  a  ver- 
dict of  guilty,  the  court  refused  to  dif^turb  it.     State  v.  McCunts,  1  Spear,  384. 

If  a  father  see  a  person  in  the  act  of  committing  an  unnatural  offence  with  his  son, 
and  insitantly  kill  him,  it  seems  that  it  would  be  only  manslaughter,  and  that  of  the  low- 
est degree;  but  if  he  only  hear  of  it,  and  go  in  search  of  the  person,  and  meeting  liim, 
strike  him  with  a  stick,  and  afterwards  stab  him  with  a  knife  and  kill  fiim,  in  point  of 
law,  it  will  be  murder.     Kerr.  v.  Fisher,  8  Car.  t^-  P.  182. 

In  the  same  case,  jier  Park  Baron,  and  Recorder  Law. 

In  a  case  of  killing,  whether  the  blood  has  hud  time  to  cool  or  not,  is  a  question  for 
the  court  and  not  for  the  jury;  hut  it  is  for  the  jury  to  find  what  length  of  time  elapsed 
between  the  provocation  received  and  the  act  done.     lb. 

Where  the  prisoner  and  the  deceased,  who  were  previously  on  intimate  terms,  were  at 
a  public  house  drinking,  when  a  scuflle  ensued,  and  tlie  deceased  struck  the  prisoner  in 
the  eye  and  gave  Jiiin  a  black  eye,  the  prisoner  called  for  the  police,  and  went  away  upon 


HISTORIA  PLACITORUM  CORON^E.  454*= 

cause,  1.  The  correction  was  excessive,  and  2.  It  was  an  act  of 
deliberate  cruelty.     M  4  Car.  B.  R.  HoUowcnfa  case. (m)  [12] 

If  the  master  desigiieth  moderate  correction  to  his  servant,  and  ac- 
cordingly iiseth  it,  and  the  servant  by  some  misfortune  dieth  thereof, 
this  is  not  murder,  but  per  infortunium.  Crompt.  136.  b.  Dalt. 
Clip.  ^%.  p.  245.,(?j)  because  the  law  alloweth  him  to  use  moderate 
correction,  and  therefore  the  deliberate  purpose  thereof  is  not  ex 
malitid  prsccogitata. 

But  if  the  master  design  an  immoderate  or  unreasonable  cor- 
rection, either  in  respect  of  the  measure,  or  manner,  or  instrument 
thereof,  and  the  servant  die  thereof,  I  see  not  how  this  can  be  ex- 
cused from  murder,  if  done  with  deliberation  and  design,  nor  from 
manslaughter,  if  done  liastily,  passionately,  and  without  delibera- 
tion ;  and  herein  consideration  must  be  had  of  the  manner  of  the 
provocation,  the  danger  of  the  instrument,  which  the  master  useth, 
and  the  age  or  condition  of  the  servant  that  is  stricken,  and  the  like 
of  a  school-master  towards  his  scholar.(o) 

The  sheriff  hath  a  warrant  to  hang  a  man  for  felony,  and  he 
beheads  him,  this  is  held  murder,  for  it  is  an  act  of  deliberation. 
Co.  P.  C.;?.  52.[13] 

A  man  hath  the  liberty  of  Infangthief€,{p)  the  steward  of  the 
court  gives  judgment  of  death  against  a  prisoner  against  law,  this 
was  a  cause  of  seizure  of  the  liberty,  but  was  not  murder  in  the 

(m)  Cro.  Car.  131.    W.  Jones,  198.  Kelyng,  127.         (o)  Kehjng,  64,  65. 

(n)  Cap.  148.  p.  478.  {p)  See  Spelman's  Glossary,  313. 


the  policeman  coming  up;  in  about  five  minutes,  iiowever,  he  returned  and  stabbed  the 
deceased  vvitli  a  Itnife,  which  he  usually  carried  about  him:  Lord  Tenterden,  C.  J.,  said, 
that  it  was  not  every  slight  provocation,  even  by  a  blow,  which  will,  when  the  party  re- 
ceiving it  striiies  with  a  deadly  weapon,  reduce  the  offence  from  murder  to  manslaughter; 
and  that,  if  there  had  been  any  evidence  of  an  old  grudge  between  tiie  parties,  the  crime 
would  probably  be  murder;  but  he  left  it  to  the  jury  to  say,  whether,  in  the  interval 
during  which  the  prisoner  was  absent,  there  was  time  for  his  passion  to  cool  and  reasoa 
to  gain  dominion  over  his  mind:  if  not,  they  should  find  him  guilty  of  manslaughter 
only.  Rex  v.  Lynch,  5  C.  Sf  P.  324. 

If,  in  fine,  there  be  a  sufficient  cooling  time  for  passion  to  subside  and  reason  to  inter- 
pose, and  the  person  so  provoked  afterwards  kill  the  other  this  is  deliberate  revenge,  and 
not  heat  of  blood,  and  accordingly  amounts  to  murder.  Wh.  A7n.  C.  L.  247.  State  v. 
Yarborough,  1  Hawks,  78.  Rex  v.  Tliomas,  1  C.  Sf  P.  817.  1  Hawkins,  P.  C.  c.  31.  s.  29. 
State  v.  Ruthfrford,  1  Haieks.  329.  U.  S.  v.  Thayer,  2  Wheeler,  C.  C.  503.  People  v. 
Garretson,  2  Wheeler's  C.  C.  347.  Rex  v.  Rankin,  1  R.  i^-  R.  43.  Rex  v.  Ayres,  ibid. 
1  East,  P.  C.  243.  Rex  v.  Anderson,  1  Russ.  447.  Rex  v.  Kissell,  1  C.  &;  P.  43T. 
Commonwealth  v.  Daily,  4  Penn.  Law  Journal,  156.  Comnionwealth  v.  Green,  1  Ash- 
vuad,  289. 

[12]  So  in  all  other  cases  when,  upon  a  sudden  provocation,  one  beats  another  in  a 
cruel  and  unusual  manner  so  that  he  dies,  it  is  murder.  4  Bl.  Com.  199.  R.  v.  Tranter, 
et  al,  1  Strange,  499.  Foster,  291.  So  also  when  tlie  instrument  used  evidently  en- 
dangers  life,  malice  will  be  implied.  Rex  v.  Howland,  1  C.  S^  P.  274.  Macklin's  case, 
1  Lew.  225.  I  Hawk.  P.  C.  c.  31.  s.  39.  Com.  v.  Drew,  4  Mass.  3d\.  State  v.  Morgan, 
3  Iredell,  136.  Com.  v.  Murray,  2  Ashmead,  41.  Penna.  v.  Bell  Addison,  1G3;  and  the 
intention  to  kill,  see  Murder  of  First  and  Second  Degrees,  post,  page  454. 

[13]  See  post.  406-502. 


454*  HISTORIA  PLACITORUM  CORONA. 

judge,  quia  factnm  judiciqUter,  licet  ignoranter.  2  R.  3.  10.  a.  the 
case  of  the  steward  of  the  hberty  of  the  abbot  of  Crowland.{\'\'\ 


[14]  The  statutes  which  have  chiefly  affected  the  law  of  homicide  since  Holers  time 
are  as  follow : 

The  act,  9  Geo.  4.  c.  31.  "  for  consolidating-  and  amending  the  statutes  oi  England  rela- 
tive to  offences  against  the  person,"  provides: 

I.  Tliat  so  much  of  the  great  charter  made  in  tiie  nintli  year  of  the  reign  of  king 
Henry  the  Third,  as  relates  to  inquisitions  of  life  or  member;  and  so  much  of  a 
statute  made  in  the  fifty -second  year  of  the  same  reign,  as  relates  to  murder;  and  so 
much  of  a  statute  made  in  the  third  year  of  the  reign  of  king  Edward  the  First,  as 
relates  to  inquests  of  murder  ;  and  sr  much  of  a  statute  made  in  the  sixth  year  of  the 
same  reign,  as  relates  to  any  person  killing  another  by  mistbrtune  or  in  his  own  de- 
fence, or  in  other  manner  without  felony ;  and  so  much  of  a  statute  made  in  the 
second  year  of  the  reign  of  king  Henry  the  Fifth  as  relates  to  persons  fleeing  for  mur- 
ders, manslaughters,  robberies,  and  batteries;  an  act  passed  in  the  twenty-fourth  year 
of  the  reign  of  king  Henry  the  Eighth,  intituled,  ''An  act  where  a  man  killing  a 
thief  shall  not  forfeit  his  goods;"  so  much  of  an  act  passed  the  thirty-third  year  of  the 
same  reign,  intituled  "An  act  for  murther  and  malicious  bloodshed  within  tiie  Courts," 
as  relates  to  the  punishment  of  manslaughter  and  of  malicious  striking,  by  reason  where- 
of blood  shall  be  shed  ;  so  mucli  of  an  act  passed  in  the  first  year  of  the  reign  of 
king  Edward  the  Sixth,  intituled  "An  act  for  the  repeal  of  certain  statutes  concern- 
ing treasons,  felonies,  &c.,"  as  relates  to  petty  treason,  murder,  &c. ;  an  act  passed  the 
fourth  and  fifth  years  of  the  reign  of  king  Philip  and  queen  Mari/,  intituled  "An  act 
that  accessaries  in  murder  and  divers  felonies  shall  not  have  the  benefits  of  the  clergy;" 
an  act  passed  in  the  first  year  of  the  reign  of  king  Jumes  the  First,  intituled  "An  act  to 
take  away  the  benefit  of  clergy  from  some  kind  of  manslaughter;"  an  act  passed  in  the 
second  year  of  the  reign  of  king  George  the  Second, intituled,  "An  act  for  the  trial  of 
murders  in  eases  where  either  the  stroke  or  death  only  happens  within  that  part  of  Great 
Britain  called  England;"  tiiat  part  of  the  act  of  the  twelfth  year  of  king  George  the 
First  which  is  hereinbefore  referred  to,  and  the  whole  of  an  act  in  the  twenty-fifth  year 
of  the  reign  of  king  George  the  Second,  intituled,  "  An  act  for  better  preventing  the 
horrid  crime  of  murder,"  except  so  far  as  relates  to  rescues  and  attempts  to  re?cue;  an 
act  passed  in  the  forty-third  year  of  the  reign  of  king  George  the  Third,  intituled,  "An 
act  for  the  further  prevention  of  malicious  shooting,  and  attempting  to  discharge  loaded 
fire  arms,  stabbing,  cutting,  wounding,  poisoning,  and  the  malicious  using  of  means  to 
procure  the  miscarriage  of  women,  and  also  the  malicious  setting  fire  to  buildings  ;  and 
also  for  repealing  a  certain  act  made  in  England  in  the  twenty-first  year  of  the  late  king 
James  ihe  First,  intituled,  "  An  act  to  prevent  the  destroying  and  murthering  bastard 
children,"  and  also  an  act  made  in  Ireland  in  the  sixth  year  of  the  reign  of  the  late  queen 
Anne,  also  intituled  ''  An  act  to  prevent  the  destroying  and  murdering  of  bastard  chil- 
dren," and  for  making  other  provisions  in  lieu  thereof^  and  an  act  passed  in  the  same 
forty-third  year,  intituled,  "  An  act  for  the  more  effectually  providing  for  the  punishment 
of  offences  in  wilfully  casting  away,  burning  or  destroying  ships  and  vessels,  and  for  the 
more  convenient  trial  of  accessaries  in  felonies,  and  for  extending  the  powers  of  an  act 
made  in  the  thirty-third  year  of  the  reign  of  king  Henry  tiie  Eighth,  as  far  as  relates  to 
murders,  to  accessaries  to  murders,  and  to  manslaughters;"  so  much  of  an  act  passed  in 
the  first  year  of  the  reign  of  his  ])resent  majesty,  intituled,  "An  act  to  remove  doubts 
and  to  remedy  defects  in  the  law  with  respect  to  certain  offences  committed  upon  the 
sea  or  within  the  jurisdiction  of  the  Admiralty,"  as  refers  to  the  act  of  the  forty. third 
year  of  the  reign  of  George  the  Third  hereinbefore  first  mentioned;  an  act  passed  the 
first  year  of  the  reign  of  his  present  majesty,  intituled,  "An  act  to  repeal  so  much  of  the 
several  acts  passed  in  the  thirty-ninth  year  of  the  reign  of  Elizabeth,  tho  fourilt  of  George 
the  First,  the  fifth  and  eighth  of  George  the  Second,  as  inflicts  capitiil  i)unishnient 
on  certain  offences  therein  specified,  and  to  ])rovide  more  suitable  and  effectual  punish- 
ment for  such  offences;"  and  an  act  pass-ed  in  the  third  year  of  the  present  reign,  inti- 
tuled "An  act  for  the  further  and  more  adequate  punishment  of  persons  convicted  of 
manslaughter,  and  of  servants  convicted  of  robbing  tlieir  masters,  and  of  accessaries  be- 
fore the  fact  of  grand  larceny,  and  certain  other  felonies,"  sliall  continue  in  force  until 
and  throughout  the  last  day  oi' June  in  the  present  year,  and  shall  from  and  ailcr  that 


HISTORIA  PLACITORUM  CORONA.  454« 

day  as  to  that  part  of  the  United  Kingdom  called  England,  and  as  to  offences  committed 
witliiii  the  jurisdiction  of  the  Admiralty  of  England,  be  repealed,  except  so  far  as  any  of 
the  said  acts  may  repeal  the  whole  or  any  part  of  any  other  acts,  and  except  as  to 
otfences  committed  before  or  upon  the  said  last  day  of  June,  which  shall  be  dealt  with 
and  punished  as  if  tiiis  act  had  not  been  passed;  and  this  act  shall  commence  and  take 
effect  (except  as  hereinbefore  excepted)  on  the  first  day  of  July  in  the  present  year. 

II.  That  every  offence  which  before  the  commencement  of  this  act  would  have 
amounted  to  petit  treason,  shall  be  deemed  to  be  murder  only,  and  no  greater  offence; 
and  all  persons  guilty  in  respect  thereof,  whether  as  principals  or  as  accessaries,  shall  be 
dealt  with,  indicted,  tried  and  punished  as  principals  and  accessaries  in  murder. 

III.  Provides  for  the  punishment  of  principals  and  accessaries  in  murder. 

IV.  Provides  for  period  of  execution  as  to  marks  of  infamy — sentence  to  be  pronounced 
immediately — judges  power  to  respite.  , 

V.  Provides  for  the  dissection  of  the  bodies  of  murderers. 
VL  Prison  regulation  as  to  murderers  under  sentence. 

VII.  British  subjects  charged  in  England  may  be  tried  there  for  murder  or  man- 
slaugliter  committed  abroad. 

VIII.  Provides  for  the  trial  of  murder  and  manslaughter  in  England  when  the  death 
or  the  cause  of  the  death  only  happens  in  England. 

IX.  Provides  for  the  punishment  of  manslaughter. 

The  Act  of  2  t^  3  Will.  IV.  c.  7.5.  s.  IG.  repeals  so  much  of  the  foregoing  act  of  9  Geo. 
IV.  c.  31.  as  directs  that  the  bodies  of  murderers  may  be  dissected — and  provides  that 
such  bodies  may  be  hung  in  chains  or  buried  as  the  court  shall  direct. 

The  Act  of  4  Sf  5  Will.  IV.  c.  26. 

I.  Recites  that  whereas  by  an  act  passed  in  the  9th  year  of  Geo.  IV.  it  was  enacted,  That 
the  body  of  every  person  convicted  of  murder  should  after  execution  either  be  dissected  or 
hung  in  chains  as  to  the  court  which  tried  the  offender  should  seem  meet.  And  whereas 
by  an  act  passed  in  the  10th  year  of  the  same  reign  alike  provision  is  made  with  re.>pect 
to  persons  convicted  of  murder  in  Ireland.  And  whereas  by  an  act  passed  in  the  second 
and  third  years  of  Will.  IV.  so  much  of  the  provision  of  the  act  passed  in  the  ninth  year 
of  Gen.  IV.  as  authorized  the  court  to  direct  that  the  body  of  a  person  convicted  of  murder 
slmuld  after  execution  be  dissected  is  repealed,  and  instead  thereof  it  was  enacted  that 
such  court  shall  direct  that  a  prisoner  so  convicted  shall  be  either  hung  in  chains  or 
buried  within  the  precincts  of  the  prison  in  which  such  prisoner  shall  have  been  confined 
after  conviction,  as  to  the  court  should  seem  meet;  and  that  the  sentence  to  be  pronounced 
by  the  court  should  express  that  llie  body  of  such  prisoner  shall  be  either  hung  in  chains 
or  buried  within  the  precincts  of  the  prison — and  whereas  it  is  expedient  to  amend  these 
acts — enacts,  That  so  much  of  the  Act  of  9  Geo.  IV.  as  authorizes  the  court  to  direct 
that  the  body  of  a  person  convicted  of  murder  should,  after  execution,  be  hung  in  chains, 
and  also  so  much  of  the  Act  of  10  Geo.  IV.  as  authorizes  the  court  to  direct  that  the 
body  of  a  person  convicted  of  murder  should,  after  execution,  be  dissected  or  hung  in 
chains,  and  also  so  much  of  the  Act  of  the  2d  &  3d  Will.  IV.  as  provides,  that  in  every 
case  of  conviction  of  any  prisoner  for  murder,  the  court  shall  direct  such  prisoner  to  be 
hung  in  chains,  is  hereby  repealed. 

II.  That  in  every  case  of  conviction  in  Ireland,  of  any  prisoner  for  murder,  the  court 
shall  direct  such  prisoner  to  be  buried  within  the  precincts  of  the  prison  where  he  shall 
have  been  confined  after  conviction.  ■  ' 

The  Act  of  6  &-  7  Will.  IV.  c.  30. 

I.  Repeals  so  much  of  two  Acts  of  9  and  10  Geo.  IV,  as  directs  the  period  "of  execution, 
and  the  prison  discipline  of  persons  convicted  of  the  crime  of  murder;  and 

II.  Enacts,  that  sentence  of  death  may  be  pronounced  after  convictions  for  murder,  in 
the  same  manner,  and  the  judge  shall  have  the  same  power,  in  all  respects,  as  after  con- 
viction for  other  capital  offences. 


UNITED  STATES. 


In  the  United  States  statutory  enactments  have  made  some  changes  in  the  ancient 
doctrines  of  homicide.  The  rules  of  construction,  however,  remain  the  same  and  the 
meaning  of  technical  terms  is  unaffected.  In  questions  of  the  law  of  homicide,  the  com- 
mon law  authorities  are  the  basis  on  which  courts  apply  the.  statutes  of  the  several  states. 
U.  S.  V.  Manrill,  1  TV.  C.  C.  R.  4G3.  Pa.  v.  M Fall,  Add.  A56.  Com.  v.  Thompson,  G  Mass. 
134.  Slate  \:  ZAler,  3  Halslcad,  220.  State  v.  Norris,  1  Hay,  429.  State  v.  Weaver, 
2  Hay.  Com.  v.  Daily,  4  Fcnn.  Law  Journal,  154. 


454^  HISTORIA  PLACITORUM  CORONiE. 

The  Act  of  Congress  of  April  30,  1790,  provides:  If  any  person  or  persons  shall  com- 
mit, upon  tlie  higli  seas,  or  in  any  river,  liaven,  basin,  or  bay,  out  of  the  jurisdiction  of 
any  particular  State,  murder  or  robbery,  or  any  other  offence,  which,  if  Gommittcd  with- 
in tlie  body  of  a  county,  would,  by  tiie  laws  of  the  United  Stales,  be  punisliable  with 
death;  or  if  any  captain  or  mariner  of  any  ship  or  other  vessel,  shall  piratically  and  felo- 
niously run  away  with  such  ship  or  vessel,  or  any  goods  or  merciiandise  to  the  value 
of  filty  dollars,  or  yield  up  such  ship  or  vessel  voluntarily  to  any  pirate;  or  if  any  seaman 
shall  lay  violent  hands  upon  his  commander,  thereby  to  hinder  and  prevent  his  fighting 
in  defence  of  his  ship,  or  goods  committed  to  his  trust,  or  shall  make  a  revolt  in  the  ship; 
every  such  offender  shall  be  deemed,  taken  and  adjudged  to  be  a  pirate  and  felon,  and 
being  thereof  convicted  shall  suffer  death;  and  the  trial  of  crimes  committed  on  the  high 
seas,  or  in  any  place  out  of  the  jurisdiction  of  any  particular  state,  shall  be  in  the  district 
where  the  offender  is  appreiiended  or  into  which  he  may  first  be  brought. — Act  30th 
April,  1790,  sect.  8.  See  post.  Act  of  3d  March,  1845,  sec.  4. 

If  any  seaman  or  other  person  shall  commit  manslaughter  upon  the  high  seas,  or 
confederate,  or  attempt  or  endeavour  to  corrupt  any  commander,  master,  officer,  or  mari- 
ner, to  yield  up,  or  to  run  away  with  any  vessel,  or  with  any  goods,  or  to  turn  pirate, 
or  to  go  over  to  or  confederate  with  pirates,  or  in  any  wise  trade  with  any  pirate' know- 
ing him  to  be  such,  or  siiall  furnish  such  pirate  with  any  ammunition,  stores  or  provi- 
sions of  any  kind,  or  shall  fit  out  any  vessel  knowingly  and  with  a  design  to  trade  with 
or  supply  or  correspond  with  any  pirate  or  robber  upon  the  seas;  or  if  any  person  shall 
any  ways  consult,  combine,  confederate  or  correspond  with  any  pirate  or  robber  on  the 
seas,  knowing  him  to  be  guilty  of  any  such  piracy  or  robbery;  or  if  any  seaman  shall 
confine  the  master  of  any  vessel,  or  endeavour  to  make  a  revolt  in  such  vessel;  such  per- 
son so  offending,  and  being  thereof  convicted,  shall  be  imprisoned  not  exceeding  three 
years,  and  fined  not  exceeding  one  thousand  dollars.  Ihid.  sect.  12. 

If  any  person  or  persons  shall,  within  any  fort,  arsenal,  dock-yard,  magazine,  or  in 
any  other  place  or  district  of  country,  under  the  sole  and  exclusive  jurisdiction  of  the 
United  Stales,  commit  the  crime  of  wilful  murder,  such  person  or  persons,  on  being 
thereof  convicted,  shall  suffer  death.  Ibid.  sect.  3. 

If  any  person  or  persons  shall,  within  any  fort,  arsenal,  dock-yard,  magazine,  or  other 
place  or  district  of  country,  under  the  sole  and  exclusive  jurisdiction  of  the  United  States, 
commit  the  crime  of  manslaughter,  and  shall  be  thereof  convicted,  such  person  or  persons 
shall  be  imprisoned  not  exceeding  three  years,  and  fined  not  exceeding  one  thousand 
dollars.  Act  30th  April,  1790,  sec.  7. 

If  any  person  upon  the  high  seas,  or  in  any  arm  of  the  sea,  or  in  any  river,  haven, 
creek,  basin  or  bay,  within  the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
and  out  of  the  jurisdiction  of  any  particular  state,  shall  commit  the  crime  of  wilful 
murder,  or  rape,  or  shall,  wilfully  and  maliciously,  strike,  stab,  wound,  poison,  or  shoot 
at,  any  other  person,  of  which  striking,  stabbing,  wounding,  poisoning,  or  shooting,  such 
person  shall  afterwards  die  upon  land  within  or  without  the  United  States,  every  person 
so  offending,  his  or  her  counsellors,  aiders  or  abettors,  shall  be  deemed  guilty  of  felony, 
and  shall  upon  conviction  thereof,  suffer  death.  Act  3d  March,  1 825,  sect.  4. 

Whenever  any  criminal,  convicted  of  any  offence  against  the  United  Slates,  shall  be 
imprisoned  in  pursuance  of  such  conviction,  and  of  the  sentence  thereupon  in  the  prison 
or  penitentiary  of  any  state  or  territory,  such  criminal  shall,  in  all  respects,  be  subject  to 
the  same  discipline  and  treatment  as  convicts  sentenced  by  the  courts  of  the  state  or  ter- 
ritory in  which  such  prison  or  penitentiary  is  situated;  and,  while  so  confined  therein, 
shall  also  be  exclusively  under  the  control  of  the  oflicers  having  charge  of  the  same,  under 
the  laws  of  the  said  state  or  territory.  Act  of  June  30,  1834. 

In  a  case  before  the  Supreme  Court  of  the  United  States,  in  181 8,  the  cotlrt  said,  that 
admitting  that  the  third  article  of  the  constitution  of  the  United  States,  which  declares 
that,  ''The  judicial  power  shall  extend  to  all  cases  of  admiralty  and  maritime  jurisdic- 
tion," vests  in  the  United  Stall  s  exclusive  jurisdiction  of  all  such  cases,  and  that  a  nmr- 
der  committed  in  the  waters  of  a  state,  where  the  tide  ebbs  and  flows,  is  a  case  of  admi- 
ralty and  maritime  jurisdiction;  Congress  have  not,  in  the  8th  section  of  the  act  of  1791, 
ch.  9.  "  for  the  punishment  of  certain  offences  against  the  United  Slates,"  so  exercised 
this  power  as  to  confer  on  the  courts  of  the  United  States  jurisdiction  over  such  murder. 
United  States  v.  liivans,  3  Whcaton,  33G. 

Congress  having  in  the  8th  section  of  the  act  of  1790,  chapter  0th,  provided  for  the 
punishtnent  of  murder,  iVc.  committed  "  upon  the  hijrh  seas,  or  in  any  river,  haven, 
basin  or  bay,  out  of  the  jurisdiction  of  any  ijarticiilar  State,"  it  is  not  the  offence  com- 
mitted, but  the  bay,  &.C.  in  which  it  is  conunittcd,  that  must  be  out  of  the  jurisdiction  of 
the  State.  Ibid. 


HISTORIA  PLACITORUM  CORONA.  4546  • 

The  grant  to  the  United  States  in  the  constitution  of  all  cases  of  admiralty  and  mari- 
time  jurisdiction,  does  not  extend  to  a  cession  of  the  waters  in  which  these  cases  may 
arise,  or  of  general  jurisdiction  over  the  same.  Congress  may  pass  all  Inws  which  are 
necessary  for  giving  the  most  complete  effect  to  the  exercise  of  the  admiralty  and  mari- 
time jurisdiction  granted  to  the  government  of  the  Unon;  but  the  general  jurisdiction 
over  the  place,  subject  to  this  grant,  adheres  to  the  territory  as  a  portion  of  territory  not 
yet  given  away;  and  the  residuary  powers  of  legislation  still  remain  in  the  state.  The 
United  States  v.  Bevans,  3  Wheaton,  336. 

On  an  indictment  for  murder,  founded  on  the  8th  Sect,  of  the  Act  of  Congress  of 
April  3'yith,  1790,  Ck.  36,  the  death  as  well  as  the  mortal  stroke  must  happen  on  the  high 
seas.     United  States  v.'Mai{ill,  4  Dallas,  426. 

The  Federal  Courts  have  no  cognizance  of  a  case  where  the  mortal  stroke  w^as  given 
on  the  high  seas,  and  the  death  occurred  on  shore  in  a  foreign  country.     Ibid. 

Murder,  &.c.  committed  by  persons  on  board  a  vessel  not  at  the  time  belonging  to  the 
subjects  of  any  foreign  power,  but  in  possession  of  a  crew  acting  in  defiance  of  all  law, 
and  acknowledging  obedience  to  no  government  whatever,  is  within  the  8th  Section  of  the 
Act  of  Congress  of  April  30,  1790,  Ch.  36,  and  is  punishable  in  the  Courts  of  the  United 
States.  United  States  v.  Fabner  and  others,  3  Wh en t on,  6\0.  United  States  v.  Pirates, 
5  IVheaton,  192.     See  also  U.  S.  v.  Furlong,  5  Wheaton,  134. 

Under  the  12lh  Sect,  of  the  Act  of  Congress  oC  April  30,  1790,  Ch.  3^,  manslaughter 
is  not  punishable  in  the  Courts  of  the  United  States,  unless  it  be  committed  on  the  high 
seas.      United  States  v.  Wilthcrger,  5  Wheaton,  56. 

The  Courts  of  the  United  States  have  jurisdiction  of  murder,  committed  on  the  high 
seas,  from  a  vessel  belonging  to  the  United  States,  by  a  foreigner  being  on  board  of  such 
vessel,  upon  another -foreigner  being  on  board  of  a  foreign  vessel.     Ibid, 

The  Courts  of  the  United  States  have  not  jurisdiction  of  a  murder  committed  by  one 
foreigner  on  another  foreigner,  on  board  a  foreign  vessel  on  the  high  seas.     lind. 

There  is  a  distinction  between  the  crimes  of  murder  and  piracy.  The  latter  is  an 
offence  within  the  criminal  jurisdiction  of  all  nations;  not  so  with  murder;  it  is  punish- 
able under  the  laws  of  each  State.     Pud. 

The  Courts  of  the  United  States  have  jurisdiction,  under  the  Act  of  April  30th,  1790, 
Ch.  36,  of  murder  or  robbery  committed  on  the  higli  seas,  although  not  committed  on 
board  of  a  vessel  belonging  to  citizens  of  the  United  States;  as  if  she  had  no  national 
character,  but  was  held  by  pirates,  or  persons  not  lawfully  sailing  under  the  flag  of  any 
foreign  nation.     United  States  v.  Holmes  et  al.,  5  Wheat.  412. 

In  the  same  case,  and  under  the  same  act,  if  the  offence  be  committed  oa  board 'of  a 
foreign  vessel,  by  a  citizen  of  the  United  States,  or  on  board  a  vessel  belonging  to  citizens 
of  the  United  States  by  a  foreigner,  or  by  a  citizen  or  foreigner,  on  board  of  a  piratical 
vessel,  the  offence  is  equally  cognizable  by  the  Courts  of  the  United  States.     Ibid. 

It  is  immaterial  whether  the  offence  was  committed  on  board  of  a  vessel,  or  in  the  sea, 
by  throwing  the  deceased  overboard  and  drowning  him,  or  by  shooting  him  in  the  sea, 
though  he  was  not  thrown  overboard.     Ibid, 

In  an  indictment  for  a  piratical  murder,  under  the  eighth  section  of  the  Act  of  April 
30th,  1790,  Ch.  36,  it  is  not  necessary  to  allege  the  prisoner  to  be  a  citizen  of  the  United 
States,  nor  that  the  crime  was  committed  on  board  a  vessel  belonging  to  citizens  of  the 
United  States,  but  it  is  sufficient  to  charge  it  as  committed  from  on  board  such  a 
vessel,  by  a  mariner  sailing  on  board  such  a  vessel.  United  States  v.  Pirates,  5  Whea. 
ton,  184. 

To  make  a  man  a  principal  in  a  murder,  it  is  not  necessary  that  he  should  inflict  the 
niortul  wound.  It  is  sufficient  if  he  be  present,  aiding  and  abetting  the  act.  Nor  is  it 
necessary  tlinrt  there  should  be  a  particular  malice  against  the  deceased.  It  is  suflicient 
if  there  be  deliberate  malignity  and  depravity  in  the  conduct  of  the  party.  United  States 
T.  Ross,  1  Gallison,  C.  C.  R.  524. 

If  a  number  of  persons  conspire  together  to  do  an  unlawful  act,  and  death  happen  in 
the  prosecution  of  the  design,  it  is  murder  in  all.  If  the  unlawful  act  was  a  trespass,  the 
murder,  to  affect  all,  must  be  done  in  the  prosecution  of  the  design.  If  the  unlawful  act 
be  a  felony,  it  will  be  murder  in  all,  although  the  death  happen  collaterally,  or  beside  the 
princi|)al  design,     lliid. 

If  several  persons  conspire  to  seize,  with  force  and  violence,  a  vessel,  and  run  away 
with  her,  and  if  necessary,  to  kill  any  person  who  shall  oppose  them  in  the  execution  of 
the  design,  and  death  ensue  in  the  prosecution  of  the  desi^-n,  it  is  murder  in  all  who  are 
present,  aiding  and  ahelting  in  executing  the  design.     Ibid. 


454*^  HISTORIA  PLACITORUM  CORONA. 

The  legal  meaning'  of  "malice  aforetlioucrlit,"  in  cases  of  homicide,  is  not  confined  to 
Iiomicide  committed  in  cold  blood  witii  settled  design  and  premeditation,  but  extends  to 
all  cases  of  homicide,  however  sudden  tiie  occasion,  where  the  act  is  done  with  such 
cruel  circumstances  as  are  the  ordinary  indications  of  a  wicked,  depraved,  and  malignant 
spirit;  as  where  the  punishment  inflicted  by  a  party,  even  upon  provocation,  is  out- 
rageous in  its  nature  and  continuance,  and  beyond  all  proportion  to  the  offence  ;  so  that 
it  is  rather  to  he  attributed  to  diabolical  malignity  and  brutality  than  to  human  infirmity. 
And  much,  in  these  cases,  depends  on  tlie  instrument  employed — whether  dangerous  to 
life  or  not.     The  United  States  v.  Cornell,  2  Mason's  C.  C.  R.  91. 

NEW  YORK. 
Revised  Statutes,  Part  IV.  Chap.  1.  Title  1. 

Sec.  4,  The  killing  of  a  human  being  without  the  authority  of  lavp,  by  jioison,  shooting, 
stabbing,  or  any  other  means,  or  in  any  other  manner,  is  either  murder,  manslaughter, 
or  excusable  or  justifiable  homicide,  according  to  the  facts  and  circumstances  of  each 
case. 

Sec.  5.  Such  killing,  unless  it  be  manslaughter  or  excusable  or  justifiable  homicide,  as 
hereinafter  provided,  shall  be  murder  in  the  following  cases  : 

1st.  When  perpetrated  from  a  premeditated  design  to  effect  the  death  of  the  person 
killed,  or  of  any  human  being. 

2d.  When  perpetrated  by  any  act  imminently  dangerous  to  others,  and  evincing  a  de- 
praved mind,  regardless  of  human  life,  although  without  any  premeditated  design  to 
effect  the  death  of  any  particular  individual. 

3d.  When  perpetrated  without  any  design  to  effect  death,  by  a  person  engaged  in  the 
commissionof  any  felony. 

Sec.  6.  Every  inhabitant  or  resident  of  this  State,  who  shall  by  previous  appointment 
or  engagement,  fight  a  duel  without  the  jurisdiction  of  this  State,  and  in  so  doing,  shall 
inflict  a  wound  upon  his  antagonist  or  ajiy  other  person,  whereof  the  person  thus  injured 
shall  die  within  this  State,  and  every  second,  engaged  in  such  duel,  shall  be  deemed  guilty 
of  murder  within  this  State,  and  may  be  indicted,  tried  and  convicted  in  the  county  where 
such  death  shall  happen. 

Sec.  7.  Every  person  indicted  under  the  provisions  of  the  last  section  may  plead  a 
former  conviction  or  acquittal  for  the  same  offence,  iii  another  State  or  country  ;  and  if 
such  plea  be  admitted  or  established,  it  shall  be  a  bar  to  any  further  or  other  proceedings 
against  such  person  for  the  same  offence,  within  this  State. 

Sec.  8.  The  killing  of  a  master  by  his  servant,  or  of  a  husband  by  his  wif5,  shall  «ot 
be  deemed  any  other  or  higher  offence  than  if  committed  by  any  other  perscm. 

Sec.  9.  Arson  in  the  first  degree,  the  punishment  of  which  is  prescribed  in  this  title, 
consists  in  wilfully  setting  fire  to  or  burning  in  the  night  time,  a  dwelling-house,  in 
which  there  shall  be,  at  the  time,  some  human  being;  and  every  house,  prison,  jail,  or 
other  edifice,  which  shall  have  been  usually  occupied  by  persons  lodging  therein  at  night, 
shall  be  deemed  a  dwelling-house  of  any  person  so  lodging  therein. 

Sec.  10.  But  no  warehouse,  barn,  shed,  or  other  out-house,  shall  be  deemfed  a  dwelling- 
house,  or  part  of  a  dwelling-house,  within  the  meaning  of  the  last  section,  unless  the 
same  be  joined  to,  immediately  connected  with,  and  part  of  a  dwelling-house. 

Sec.  11.  Whenever  any  convict  shall  be  sentenced  to  the  punishment  of  death,  the 
Court,  or  a  mayor  thereof — of  whom  the  presiding  judge  shall  always  be  one,  shall  make 
out,  sign  and  deliver  to  the  Sheriff  of  the  county,  a  warrant  stating  such  conviction  and 
sentence,  and  ap|)ointing  the  day  on  which  such  sentence  shall  be  executed. 

Sec.  12.  Such  day  shall  not  be  less  than  four  weeks,  and  not  more  than  eight  weeks 
from  the  time  of  the  sentence. 

Sec.  13.  The  presiding  judge  of  the  Court  at  which  such  conviction  shall  have  taken 
place,  shall  immediately  thereupon  transmit  to  the  Governor  of  this  State,  by  mail,  a 
statement  of  such  conviction  and  sentence,  with  the  notes  of  testimony  taken  by  such 
judge  on  the  trial.  The  expense  of  such  statement,  to  be  estimated  at  the  rate  allowed 
for  drafts  and  copies  of  pleadings  in  the  Sujireme  Court,  shall  be  audited  by  the  Comp- 
triiller,  and  paid  out  of  tiie  treasury. 

Sec.  14.  The  fJovonior  sliall  he  authorized  to  require  the  opinion  of  the  Chancellor, 
the  justices  of  the  Su|)rein(;  C^ourt,  and  of  the  attorney  general,  or  of  any  of  them,  upon 
any  st<it(  inent  so  furnislied.. 

Sec.  15.  JNo  judge.  Court,  or  officer,  other  than  the  Governor,  shall  have  any  authority 


HISTORIA  PLACITORUM  CORONA.  454' 

to  reprieve  or  suspend  the  execution  of  any  convict  sentenced  to  the  punishnnent  of  death; 
except  sheritis,  in  the  Q;jses  and  in  the  manner  hercinaller  provided. 

Sec  16.  If  alter  any  convict  shall  have  been  sentenced  to  the  punishment  of  death,  he 
sliall  become  insane,  the  Sheritf  of  the  countyrWith  the  concurrence  of  the  circuit  judge 
of  the  circuit,  or  if  he  be  absent  from  the  county,  with  the  concurrence  of  any  judge  of 
the  Court  before  which  the  conviction  was  had,  may  summon  a  jury  of  twelve  electors 
to  inquire  into  such  insanity,  and  shall  give  immediate  notice  thereof  to  the  district 
attorney  of  the  county. 

Sec.  17.  The  district  attorney  shall  attend  such  inquiry,  and  may  produce  witnesses 
before  the  jury;  for  which  purpose  he  shall  have  the  same  power  to  issue  subpnenas  as 
for  witnesses  to  attend  a  grand  jury,  and  disobedience  thereto  may  be  punished  by  the 
Court  ot'Oyer  and  Terminer  which  shall  next  sit  in  such  county,  in  the  same  manner  as 
disobedience  to  any  process  issued  by  such  Court. 

Sec.  18.  The  inquisition  of  the  jury  shall  be  signed  by  them  and  the  Sheriff.  If  it  be 
found  by  such  inquisition  that  such  convict  is  insane,  the  Sheriff  shall  suspend  execution 
of  the  warrant  directing  the  death  of  such  convict,  until  he  shall  receive  a  warrant  from 
the  Governor  of  this  State,  or  from  the  justices  of  the  Supreme  Court,  directing  the  exe- 
cution of  such  convict. 

Sec.  19.  l^he  Sheriff  shall  immediately  transmit  such  inquisition  to  the  Governor,  who 
may,  as  soon  as  he  shall  be  convinced  of  t!ie  sanity  of  such  convict,  issue  a  warrant 
appointing  a  time  and  place  for  his  execution,  pursuant  to  his  sentence. 

.  Sec.  20.  If  a  female  convict  sentenced  to  the  punishment  of  death,  be  pregnant,  the 
Sheriff  shall  in  like  manner  summon  a  jury  of  six  physicians,  and  shall  give  the  like 
notice  thereof  to  the  district  attorney,  who  shall  attend  and  have  power  to  issue  sub- 
poenas, as  herein  before  provided,  and  with  the  like  effect.  An  inquisition  shall  in  like 
inat)ner  be  made  and  signed  by  the  jurors  and  the  Slieriff. 

Sec.  21.  If  by  such  inquisition  it  appear  that  such  female  convict  is  quick  with  child,  the 
SherifF_sha]l  in  like  manner  suspend  the  execution  of  her  sentence,  and  sljall  transmit 
the  inquisition  to  the  Governor. 

Sec.  22.  Whenever  the  Governor  shall  be  satisfied  that  such  female  convict  is  no  longer 
quick  with  child,  he  shall  is.sue  his  warrant  appointing  a  day  for  her  execution  pursuant 
tt)  her  sentence,  or  he  may  in  his  discretion  commute  her  punishment  to  perpetual  im- 
prisonment in  the  State  prison. 

Sec.  23.  Whenever  for  any  reason,  any  convict  sentenced  to  the  punishment  of  death, 
shall  not  liavc  been  executed  pursuant  to  such  sentence,  and  the  same  shall  stand  in  full 
force,  the  Supreme  Court,  on  the  application  of  the  attorney  general,  or  of  the  district 
attorney  of  the  county  where  the  conviction  was  had,  shall  issue  a  writ  of  habeas  corpus, 
to  bring  such  convict  before  such  Court;  or  if  he  be  at  large,  a  warrant  for  his  appre- 
hension may  be  issued  by  the  said  Court,  or  any  justice  thereof. 

Sec.  24.  Upon  such  convict  being  brought  before  the  Court,  they  shall  proceed  to  inquire 
into  the  facts  and  circumstances — and  if  no  legal  reasons  exist  against  the  execution  of 
such  sentence,  they  shall  sign  a  warrant  to  the  Sheriff  of  the  proper  county,  commanding 
him  to  do  execution  of  such  sentence,  at  such  time  as  shall  be  appointed  therein;  which 
shall  be  obeyed  by  such  sheriff  accordingly. 

Sic.  25.  The  punishment  of  death  shall  in  all  cases  be  inflicted,  by  hanging  the  convict 
by  the  neck,  until  he  be  dead. 

Sec.  26.  Whenever  any  person  shall  be  condemned  to  suffer  death  for  any  crime  of 
which  sue}]  person  shall  have  been  convicted  in  any  Court  of  this  State,  such  punishment 
shall  be  inflicted  within  the  walls  of  the  prison  of  the  county  in  which  such  conviction 
shall  have  taken  place,  or  within  a  yard  or  enclosure  adjoining  said  prison. 
•  Sec.  27.  It  shall  be  the  duty  of  the  Sheriff  or  under-sherifi' of  the  county  to  be  present 
at  such  execution,  and  to  invite  the  presence,  by  at  least  three  days'  previous  notice,  of 
the  judges,  district  attorney,  clerk  and  surrogate  of  said  county,  together  with  two  phy- 
sicians and  twelve  reputable  citizens,  to  be  selected  by  said  Sheriff  or  under-sheriff'.  And 
the  said  Sheriff  or  under-sheriff  shall,  at  the  request  of  the  criminal,  permit  such  minis- 
ter  or  ministers  of  the  gospel,  not  exceeding  two,  as  said  criminal  shall  name,  and  any 
of  the  immediate  relatives  of  said  criminal,  to  attend  and  be  present  at  such  execution  ; 
and  also  such  officers  of  the  prison,  deputies  and  constables  as  said  Sheriff  or  under- 
sheriff  .shall  deem  expedient  to  have  present;  but  no  other  persons  than  tiiosc  herein 
mentioned  sliall  be  permitted  to  be  present  at  such  execution;  nor  shall  any  person  under 
age  be  allowed  to  witness  the  same. 

Sec.  28.  The  Sheriff  or  under-sheriff  and  judges  attending  such  execution,  shall  pre- 
pare and  sign,  ofHcially,  a  certificate  setting  forth  the  time  and  place  thereof,  and  that 


454J  HISTORIA  PLACITORUM  CORON^^. 

such  criminal  was  then  and  there  executed  in  conformity  to  the  sentence  of  tiie  Court, 
and  the  [irovisions  of  this  act;  and  shall  procure  to  said  certificate  the  signatures  of  the 
otiier  puhlic  officers  and  persons  not  relatives  of  the  criminal,  who  witnessed  such  execu- 
tion. And  the  Sheriff  or  under-sheritf  shall  cause  such  certificate  to  be  filed  in  the 
office  of  the  clerk  of  said  county,  and  a  copy  thereof  to  be  published  in  the  State  paper, 
and  in  one  newspaper,  if  any,  printed  in  said  county.  2  R.  S.  2d  Ed.  p.  546,  et  seq. 
Title  2,  Article  1,  (of  same  part  and  chapter.) 

Sec.  1.  The  killing'  of  one  human  being,  by  the  act,  procurement  or  omission  of 
another,  in  cases  where  such  killing-  shall  not  be  murder  according  to  the  provisions  of 
the  first  title  of  this  chapter,  is  either  justifiable  or  excusable  homicide  or  manslaughter. 

Sec.  2.  Such  homicide  is  justifiable  when  committed  by  public  officers,  and  those  acting 
by  their  command,  in  their  aid  and  assistance,  cither — 

1.  In  obedience  to  any  judgment  of  a  competent  court;  or, 

2.  When  necessarily  committed  in  overcoming  actual  resistance  to  the  execution  of 
some  legal  process,  or  to  the  discharge  of  any  other  legal  duty;  or, 

3.  When  necessarily  committed  in  retaking  felons  who  have  been-  rescued  or  who 
have  escaped;  or, 

4.  When  necessarily  committed  in  arresting  felons  fleeing  from  justice. 

Sec.  3.  Such  homicide  is  also  justifiable,  when  committed  by  any  person,  in  either  of 
the  following  cases : 

1.  When  resisting  any  attempt  to  murder  such  person,  or  to  commit  any  felony 
upon  him  or  her,  or  upon  or  in  any  dwelling-house  in  which  such  person  shall  be;   or, 

2.  When  committed  in  the  lawful  defence  of  such  person,  or  of  his  or  her  husband, 
wife,  parent,  child,  master,  mistress  or  servant,  when  there  shall  be  a  reasonable  ground 
to  apprelicnd  a  design  to  commit  a  felony,  or  to  do  some  great  personal  injury,  and  there 
shall  he  imminent  danger  of  such  design  being  accomplished;  or, 

3.  When  necessarily  committed  in  attempting  by  lawful  ways  and  means  to  appre- 
hend any  person  for  any  felony  committed;  or  in  lawfully  suppressing^any  riot;  oi;  in 
lawfully  keeping  and  preserving  the  peace. 

Sec.  4.  Such  homicide  is  excusable  when  committed — 

1.  By  accident  and  misfortune  in  lawfully  correcting  a  child  or  servant;  or  in  doing 
any  other  lawful  act  by  lawful  means  with  usual  and  ordinary  caution,  and  without  any 
unlawful  intent;   or, 

2.  By  accident  and  misfortune,  in  the  heat  of  passion,  upon  any  sudden  and  sufficient 
provocation,  or  upon  a  sudden  combat,  without  any  undue  advantage  being  taken,  and 
without  any  dangerous  weapon  belong  used,  and  not  done  in  a  cruel  or  usual  manner. 

Sec.  5.  Whenever  it  shall  appear  to  the  jury,  on  the  trial  of  any  person  indicted  for 
murder  or  manslaughter,  that  the  alleged  homicide  was  committed  under  circutnslances, 
or  in  cases  where  by  law  such  homicide  was  justifiable  or  excusable,  the  jury  shall  ren- 
der a  general  verdict  of  not  guilty. 

Sec.  6.  The  killing  of  a  human  being,  without  a  design  to  effijct  death,  by  the  act, 
procurement,  or  culpable  negligence  of  any  other,  while  such  other  is  engaged — 

1.  In  the  perpetration  of  any  crime  or  misdemeanor  not  amounting  to  felony;  or, 

2.  In  an  attempt  to  perpetrate  any  such  crime  or'misdemeanor. 

In  cases  where  such  killing  would  be  murder  at  the  common  law,  shall  be  deemed 
manslaughter  in  the  first  degree. 

Sec.  7.  Every  person  deliberately  assisting  another  in  the  commission  of  self-murder, 
shall  be  deemed  guilty  of  manslaughter  in  the  first  degree. 

Sec.  8.  The  wilful  killing  of  an  unborn  quick  child,  by  any  injury  to  the  mother  of 
such  child,  which  would  be  murder  if  it  resulted  in  the  death  of  such  mother,  shall  be 
deemed  manslaughter  in  the  first  degree. 

Sec.  I).  Repealed.     See  post,  act  of  May  I3th,  1845. 

Sec.  10.  The  killing  of  a  human  being,  without  a  design  to  effijct  death,  in  a  heat  of 
passion,  but  in  a  cruel  and  usual  maimer,  unless  it  be  committed  under  such  circum- 
stances as  to  constitute  excusable  or  justifiable  homicide,  shall  be  deemed  manslaughter 
in  the  second  degree. 

Sec.  1 1.  Every  ]»crson  who  shall  unnecessarily  kill  another,  either 

1.  While  resisting  an  attempt  by  such  other  person  to  commit  any  felony,  or  to  do 
any  other  unlawful  act;  or, 

2.  After  sucli  attempt  shall  have  fiiilod; 

Shall  be  deemed  guilty  of  manslaughter  in  the  second  degree. 

Sic.  12.  The  killing  of  another  in  the  heat  of  passion,  without  a  design  to  effect 
death,  by  a  dangerous  weapon,  in  any  case  c.vccpt  such  wherein  the  killing  of  another 


HISTORIA  PLACITORUM  CORONiE.  454k 

is  herein  declared  to  be  justifiable  or  excusable,  shall  be  deemed  manslaughter  in  the 
third  degree. 

Sec.  13.  The  involuntary  killing  of  a  human  being,  by  the  act,  procurement,  or 
culpable  negligence  of  another,  while  such  other  person  is  engaged  in  the  comniit-sion 
of  a  trespass,  or  other  injury  to" private  rights  or  property,  or  engaged  in  an  attempt  to 
commit  such  injury,  shall  be  deemed  manslaugiiter  in  the  third  degree. 

Sec.  14.  If  the  owner  of  a  mischievous  animal,  knowing  its  propensities,  wil- 
fully suffer  it  to  go  at  large,  or  shall  keep  it  without  ordinary  care,  and  such  animal, 
while  so  at  large  or  not  confined,  kill  any  human  being,  who  shall  have  taken  all  the 
precautions  which  the  circumstances  may  permit,  to  avoid  such  animal,  such  owner 
shall  be  deemed  guilty  of  manslaughter  in  the  tliird  degree. 

Sec.  15.  Any  person  navigating  any  boat  or  vessel  for  gain,  who  shall  wilfully  or 
negligently  receive  so  many  passengers,  or  such  a  quantity  of  other  lading,  that  by 
means  thereof  such  boat  or  vessel  shall  sink  or  overset,  and  thereby  any  human  being 
shall  be  drowned  or  otherwise  killed,  shall  be  deemed  guilty  of  manslaughter  in  the 
third  degree. 

Sec.  16.  If  the  captain  or  any  other  person,  having  charge  of  any  steamboat  used  for 
the  conveyance  of  passengers,  or  if  the  engineer  or  other  person  having  charge  of  the 
boiler  of  such  boat  or  of  any  other  apparatus  for  the  generation  of  steam,  shall,  from 
ignorance  or  gross  neglect,  or  for  the  purpose  of  excelling  any  other  boat  in  speed, 
create,  or  allow  to  be  created,  such  an  undue  quantity  of  steam  as  to  burst  or  break  the 
boiler  or  other  apparatus  in  which  it  shall  be  generated,  or  any  apparatus  or  machinery 
connected  therewith,  by  which  bursting  or  breaking,  any  person  shall  be  killed :  every 
such  captain,  engineer,  or  other  person,  shall  be  deemed  guilty  of  manslaughter  in  the 
tliird  degree. 

Sec.  17.  If  any  physician,  while  in  a  state  of  intoxication,  shall,  without  a  design  to 
efifect  death,  administer  any  poison,  drug  or  medicine.  Or  do  any  other  act  to  another 
person,  which  shall  produce  the  death  of  such  other,  he  shall  be  deemed  guilty  of  man- 
slaughter in  the  third  degree. 

Sec.  18.  The  involuntary  killing  of  another,  by  any  weapon,  or  by  means  neither 
cruel  nor  unusual  in  the  heat  of  passion,  in  any  cases  other  than  such- as  are  herein  de- 
clared to  be  excusable  homicide,  shall  be  deemed  manslaughter  in  the  fourth  degree. 

Stc.  19.  Every  other  killing  of  a  human  being,  by  the  act,  procurement,  or  culpable 
negligence  of  another,  wliere  such  killing  is  not  justifiable  or  excusable,  or  is  not  de- 
clared in  this  cJiapter  murder,  or  in  this  title  manslaughter  of  some  other  degree,  shall 
be  deemed  manslaughter  in  the  fourth  degree. 

Sec.  20.  Persons  convicted  of  manslaugiiter  in  the  first,  second,  or  third  degrees,  shall 
be  punished  by  imprisonment  in  a  state  prison,  as  follows: 

1.  Persons  convicted  of  manslaughter  in  the  first  degree,for  a  term  not  less  than  seven 
years. 

2  If  convicted  of  manslaughter  in  the  second  degree,  for  a  term  not  less  than  four,, 
and  not  more  than  seven  years. 

3.  If  convicted  of  manslaughter  in  the  third  degree,  for  a  term  not  more  than  four 
years,  and  not  less  than  two  years. 

Sec.  21.  Every  person  convicted  of  manslaughter  in  the  fourth  degree,  shall  be 
punished  by  imprisonment  in  a  state  prison  for  two  years,  or  by  imprisonment  in  a 
county  jail  not  exceeding  one  year,  or  by  a  fine  not  exceeding  one  thousand  dollars,  or 
by  both  such  fine  and  imprisonment.     2  R.  S.  2d  ed.  p.  546,  et  seq. 

By  the  Act  of  May  13,  1845. 

1.  Every  person  who  shall  administer  to  any  person  pregnant  with  a  quick  child,  or- 
prescribe  for  any  such  woman,  or  advise  or  procure  any  such  woman  to  take  any  nicdi- 
cine,  drug,  or  sub.stance  whatever,  or  shall  use  or  employ  any  in.'^trument  or  other  means, 
with  intent  thereby  to  destroy  such  child,  unless  the  same  shall  have  been  necessary  to 
preserve  the  life  of  such  mother,  shall  be  deemed  guilty  of  manslaughter  in  the  second 
degree. 

2.  Every  person  who  shall  administer  to  any  pregnant  woman,  or  prescribe  for  any 
such  woman,  or  advise  or  procure  any  such  woman  to  take  any  medicine,  drug,  or  sub- 
stance or  thing  whatever,  or  shall  use  or  employ  any  instruments  or  ether  means  what- 
ever, with  intent  thereby  to  procure  the  miscarriage  of  any  such  woman,  shall,  upon 
conviction,  be  punished  by  imprisonment  in  a  county  jail,  not  less  than  three  months  nor 
more  than  one  year. 

3.  Every  woman  who  shall  solicit  of  any  person  any  medicine,  drug,  or  substance  or 
thing  whatever,  and  shall  take  the  same,  or  shall  subuiit  to  any  operation  or  other  means 


454^  HISTORIA  PLACITORUM  CORONA. 

whatever,  with  intent  thereby  to  procure  a  miscarriagfe,  shall  be  deemed  guilty  of  a  mis- 
demeanor,  and  sliall  upon  conviction,  be  punislied  by  imprisonment  in  the  countyjail  not 
less  than  three  montlis  nor  more  than  one  year,  or  by  a  fine  not  exceeding  one  thousand 
dollars,  or  by  botli  such  fine  and  imprisonment. 

4.  Any  woman  who  shall  endeavour  privately,  either  by  herself  or  the  procurement  of 
others,  to  conceal  the  death  of  any  issue  of  her  body,  which  if  born  alive  would  by  law 
be  a  bastard,  whether  it  was  born  dead  or  alive,  or  whether  it  was  murdered  or  not,  shall 
be  deenied  guilty  of  a  misdemeanor,  and  shall,  on  conviction  thereof,  be  punished  by  im- 
prisonment in  a  county  jail  not  exceeding  one  year. 

5.  Any  woman  who  sliall  be  convicted  a  second  time  of  the  offence  specified  in  the 
fourth  section  of  this  act,  shall  be  imprisoned  in  a  state  prison  for  a  term  not  less  than 
two  or  more  than  five  years. 

6.  Section  nine,  article  first,  title  second,  of  chapter  one,  of  the  fourth  part  of  the  Re. 
vised  Statutes;  and  section  twenty -one,  title  six,  chapter  one,  of  the  fourth  part  of  the 
Revised  Statutes,  are  hereby  repealed. 

In  Enqch^s  case,  (1834")  Cliancellor  WalwortTi  delivering  the  judgment  of  the  Court  of 
Errors  of  JVew;  York,  said:  "Where  an  offence  is  created  by  statute,  which  was  not  an 
offence  by  the  common  law,  it  is  a  general  rule  that  the  indictment  must  charge  the 
offence  to  have  been  committed  under  the  circumstances,  and  with  the  intent  mentioned 
in  the  statute,  which  of  course  contains  the  only  appropriate  definition  of  the  crime. 
State  v.  Jones,  2  Yerg.  Ten.  R.  22.  State  v.  O.  Bannon,  1  Bailei/s  Law,  R.  144.  But  even 
in  that  case  it  is  not  necessary  to  pursue  the  exact  words  of  the  statute  creating  the 
offence,  provided  other  words  are  used  in  the  indictment  which  are  equivalent,  or  words 
of  more  extensive  signification,  and  which  necessarily  include  the  words  used  in  the 
statute;  as  where  advisedly  is  substituted  for  knowingly,  or  maliciously  for  imlfully,  and 
the  like.  The  King  v.  Fuller,  1  Bos.  ^  Pull.  180.  ^United  States  v.  Bachelder,  2  Gall. 
R.  15.  It  is  otherwise  in  indictments  for  common  law  offences,  where  the  law  has 
adopted  certain  technical  expressions  to  define  the  offence,  or  to  indicate  the  intention 
with  whicli  it  was  committed;  in  which  cases  the  crime  must  be  described,  or  the  inten- 
tion must  be  expressed  by  the  technical  terms  prescribed,  and  no  other.  Thus,  in  an 
indictment  for  murder,  the  terms,  murder  of  his  malice  aforethought,  are  considered  ab- 
solutely necessary  in  describing  the  offence:  and  if  these  words  are  left  out  of  the  indict- 
ment, it  will  be  deemed  a  case  of  manslaughter  only.  In  determining  the  question  whether 
an  indictment  should  be  drawn  as  at  the  common  law,  or  should  appear  to  be  founded 
upon  a  statutory  provision  which  is  applicable  to  the  offence,  the  following  rules  are  to  be 
observed :  If  the  statute  creates  an  ort'ence,  or  declares  a  common  law  offence,  when  com- 
mitted under  particular  circumstances  not  necessarily  included  in  the  original  offence, 
punishable  in  a  different  manner  from  what  it  would  have  been  without  such  circum- 
stances;  or  where  the  statute  changes  the  nature  of  the  common  law  offence  to  one  of  a 
higher  degree,  as  where  what  was  originally  a  misdemeanor  is  made  a  felony,  the  in- 
dictment  should  be  drawn  in  reference  to  the  provisions  of  the  statute  creating  or 
changing  the  nature  of  the  offence,  and  should  conclude  against  the  form  of  the  statute; 
but  if  the  statute  is  only  declaratory  of  what  was  previously  an  oflTence  at  common 
law,  without  adding  to,  or  altering  the  punishment,  as  was  the  statute  of  25  Edward  III., 
declaring  what  should  be  considered  and  adjudged  treason,  the  indictment  need  not  con- 
clude against  the  form  of  the  statute,    1  Deac.  Crim.  Law,  661. 

The  object  of  the  legislature  in  adopting  the  provisions  of  the  revised  statntes  relative 
to  homicide,  in  tiie  recent  revision  of  the  laws,  certainly  was  not  to  create  a  new  offence 
of  murder;  but  the  intention  uiuloubtcdiy  was  to  restore  the  ancient  common  law  on  that 
subject,  as  it  .existed  at  the  time  when  the  common  law  form  of  indictment  was  origi- 
nally ado|)ted,  and  to  draw  a  proper  line  of  discrimination,  if  possible,  between  the  offence 
which  was  hereafter  to  be  considered  a  felonious  killing,  with  malice  aforethought,  which 
alone  constitutes  the  crime  of  murder,  and  what  was  to  be  deemed  a  felonious  killing 
without  such  malice,  ilow  fir  they  have  succeeded  as  to  the  last  of  these  objects,  may 
perhaps  be  considered  as  a  nintter  of  some  doubt.  l>iit  they  have  unquestionably  suc- 
ceeded in  restricting  some  cases  to  the  grade  f)f  manslaugliler,  which,  upon  tiie  princi- 
ples of  the  common  law,  never  ouglit  to  have  been  considered  or  adjudfjed  to  be  olfoiices 
of  a  higher  grade;  such  as  the  unintentional  killing  of  a  person,  or  an  offender  who  was 
eng.-ijred  in  a  riot  or  otiicr  offence,  that  was  a  mere  misdemeanor,  and  not  a  felony. 

'I'hcre  is  another  class  of  cases,  referred  to  on  the  argument  as  cases  of  murder  at  the 
common  law,  which,  under  the  provisions  of  the  revised  statutes,  must  hereafter  unques- 
tionably  he  considered  and  adjti(lg(  d  to  be  manshiughter,  and  not  murder.  And  tlicre  is 
also  another  and  much  larger  class  of  cases  which  hereafter  must  be  deemed  murder,  by 


HISTORIA  PLACITORUM  CORONA.  454'" 

reason  of  the  implied  malice  that  will  now  attach  to  the  unlawful  killin(r;  which  cases, 
before  the  rcvi.^ion  of  the  statutes,  were  cases  of  manshiugliter  only.  Tlie  two  classes 
to  wliicli  I  allude,  depend  however,  upon  a  principle  which  does  not  require  any  change 
■to  be  made  in  the  common  law  form  of  the  indictment  for  murder.  Malice  was  implied 
in  many  eases  at  the  common  law,  where  it  was  evident  that  the  offenders  could  not 
haTe  had  any  intention  of  destroying  human  life,  merely  on  the  ground  that  the  homicide 
'was  committed,  while  the  person  who  did  the  act  was  engaged  in  the  commission  of  some 
other  felonj',  or  in  an  attempt  to  peri)etrate  some  offence  of  that  grade.  Every  felony, 
by  the  common  law,  involved  a  forfeiture  of  the  lands  or  goods  of  the  offender,  upon  a 
conviction  of  the  offence;  and  nearly  all  offences  of  that  grade  were  punishable  with 
death,  with  or  without  benefit  of  clergy.  In  such  cases,  therefore,  the  malicious  and 
premeditated  intent  to  perpetrate  one  kind  of  felony,  was,  by  implication  of  law,  trans- 
ferred from  such  offence  to  the  homicide  which  was  actually  committed,  so  as  to  make 
the  latter  offence  a  killing  with  malice  aforethought,  contrary  to  the  real  fact  of  the  case 
as  it  appeared  in  evidence.  This  principle  is  still  retained  in  the  law  of  homicide ;  and 
it  necessarily  follows,  from  the  principle  itself,  that  as  often  as  the  legislature  creates 
new  felonies,  or  raises  offences  which  were  only  misdemeanors  at  the  common  law  to 
the  grade  of  felony,  a  new  class  of  murders  is  created  by  the  application  of  this  principle 
to  the  case  of  a  killing  of  a  human  being,  by  a  person'who  is  engaged  in  the  perpetration 
of  a  newly  created  felony.  So,  on  the  other  hand,  when  the  legislature  abolishes  an 
offence  which  at  the  common  law  was  a  felony,  or  reduces  it  to  the  grade  of  a  misde- 
meanor oidy,  the  case  of  an  unlawful  killing,  by  a  person  engaged  in  the  act  which  was 
before  a  felony,  will  no  longer  be  considered  to  be  murder,  but  manslaughter  merely. 
Such  changes  in  the  law  of  murder  have  often  occurred,  both  in  this  country  and  in 
England;  yet  it  never  has  before  been  thought  necessary  to  change  the  common  law 
form  of  the  indictment  to  meet  cases  of  this  description.  The  court  and  jury  in  such 
cases  immediately  apply  the  common  law  principle,  and  the  killing  is  adjudged  to  be 
murder  er  manslaughter,  according  to  the  nature  and  quality  of  the  crime  that  the  offen- 
der was  perpetrating  at  the  time  the  homicide  was  committed.  Let  us  then  apply  these 
principles  to  the  case  now  under  consideration.  The  revised  statutes  having  declared 
tliat  hereafter  offences  punishable  with  death  or  with  imprisomnent  in  the  state  prison, 
and  such  offences  only,  shall  be  deemed  felonies,  it  follows,  of  course,  that  an  accessary 
to  a  suicide,  or  a  person  who  unintentionally  kills  in  an  attempt  to  perpetrate  a  first 
offence  of  petit  larceny,  could  not  now  be  guilty  of  the  common  law  offence  of  murder; 
and  therefore  the  jury  could  not  have  found  him  guilty  under  an  indictment  like  the  one 
now  before  us.  The  unintentional  killing  of  a  female,  in  an  attempt  to  produce  an 
abortion,  with  her  own  consent,  was  not  in  itself  murder,  although  at  the  common  law, 
if  she  was  quick  with  child,  it  formed  a  very  aggravated  case  of  felonious  homicide;  and 
it  is  now  made  murder  in  England,  by  the  operation  of  the  statute  which  makes  the  de- 
struction of  the  child  a  capital  felony.  It  was  also  murder  here,  by  the  operation  of  the 
third  subdivision  of  the  fifth  section  of  the  revised  statutes,  which  attempt  to  define  the 
crime  of  murder,  until  the  legislature,  by  the  amendment  of  the  ninth  section  of  the  next 
title,  2  R.  S.  661.  §  9.  3.  R.  S.  npp.  158.  §  58.  made  the  killing  of  the  mother,  as  well  as 
the  child,  a  case  of  manslaughter  only.  Some  other  eases  of  unintentional  killing,  by 
persons  engaged  in  riots  and  other  misdemeanors  below  the  grade  of  felonies,  which  pre- 
vious to  the  revision  had  also  been  improperly  considered  as  cases  of  murder  contrary  to 
principles  of  the  ancient  common  law,  are  now  restored  to  that  grade  of  homicide  to 
which  tlicy  properly  belong.  All  offences  of  that  description  are  now  placed  in  the  class 
of  homicides  committed  without  malice  aforetiiaught;  except  where  the  killing  is  perpe- 
trated by  an  act  imminently  dangerous  to  others,  and  evincing  a  depraved  mind,  regard- 
less of  human  life;  which  circumstances  now,  as  at  the  common  law,  are  sufHcicnt  to 
authorize  the  jury  to  find  the  defendant  guilty  of  killing  with  malice  aforethought.  2  R. 
.S.  657.  §  5.  sub.  2. 

From  this  examination  of  the  subject,  I  have  arrived  at  the  conclusion  that  a  common 
law  indictment  for  murder  is  proper,  under  the  provision  of  the  revised  statutes.  And 
a  defendant  cannot  be  convicted  on  such  an  indictment  of  a  felonious  homicide  with 
malice  aforethought,  unless  the  evidence  is  such  as  to  bring  the  case  within  the  statutory 
definition  of  murder."  Tlie  People  v.  Enoch,  13  Wendell,  lod.  Vide  The  People  v.  Mc- 
Leod,  1  Hill,  377.    The  People  v.  Jackson,  3  Hill,  92. 

On  the  trial  of  an  indictment  for  murder,  where  there  is  no  pretence  that  the  prisoner 
killed  the  deceased,  while  engaged  in  a  riot  or  other  misdemeanor,  not  amounting  to  a 
felony,  by  misadventure,  but  the  death  ensued  in  consequence  of  an  intentional  violence 
upon  the  person  of  the  deceased;  whether  tiie  prisoner  designed  to  kill  or  nut,  he  is  not 
entitled  to  have  the  jury  instructed  that  they  cannot  convict  of  murder,  if  they  should 


454°  HISTORIA  PLACITORUM  CORONiE. 

come  to  the  conclusion  that  tlie  mortal  wound  was  inflicted  in  committing,  or  attempt- 
ing to  commit  an  otfence  which  of  itself  is  less  than  felony.  Homicide,  occasioned  by 
committing  or  attempting  to  commit  a  misdemeanor,  though  murder  at  the  common  law, 
is  by  the  revised  statutes  reduced  to  manslaughter  in  the  first  degree.  The  People  v. 
Rector,  19  Wendell,  569. 

Manslaughter  ditfers  from  murder  in  this,  that  though  the  act  which  occasioned  the 
death  be  unlawful,  or  likely  to  be  attended  with  bodily  mischief,  yet  tlie  malice,  eitlier 
express  or  implied,  wliich  is  the  very  essence  of  murder,  is  presumed  to  be  wanting;  and 
the  act  being  imputed  to  the  infirmity  of  human  nature,  the  punishment  is  proportionably 
lenient.  Ex  parte  Tayloe,  5  Cowen,  51. 

On  a  trial  for  murder,  where  it  appeared  that  the  deceased  sought  to  gain  admittance 
into  a  house  of  ill  fame  by  violence  and  against  the  will  of  the  keeper  thereof,  who  made 
an  attack  upon  the  aggressor,  and  death  ensued,  it  was  held,  that  testimony  that  threats 
made  a  week  previous  to  the  assault  by  persons  who  had  broken  into  the  house,  that 
tliey  would  return  some  other  night  and  break  in  again,  might  be  received  and  submitted 
to  the  consideration  of  the  jury,  under  the"  instruction  of  the  court;  although  it  seems 
that  for  the  rejection  of  such  evidence,  where  it  was  not  shown  that  the  deceased  was  of 
the  party  who  made  the  threats,  a  new  trial  would  not  be  granted.  The  People  v.  Rector, 
19  Wendell,  569. 

As  to  bail  in  homicide,  see  Ex  parte  Tayloe,  5  Cowen,  51.  Goodwin's  case,  1  Wit. 
Cr.  C.  443. 

MASSACHUSETTS. 

Every  person  who  shall  commit  the  crime  of  murder,  shall  suffer  the  punishment  of 
death  for  the  same.    Rev.  Stat.  chap.  125,  sect.  1. 

In  every  case  of  conviction  of  the  crime  of  murder,  the  court  may,  in  their  dis- 
cretion, order  the  body  of  the  convict,  after  his  execution,  to  be  dissected,  and 
the  sheriff,  in  such  case,  shall  deliver  the  dead  body  of  such  convict,  to  a  professor  of 
anatomy  and  surgery,  in  some  college  or  public  seminary,  if  requested ;  otherwise,  it 
shall  be  delivered  to  any  surgeon,  who  may  be  attending  to  receive  it,  and  who  will 
engage  for  the  dissection  therepf.     Ihid.  sect.  2. 

Every  person,  being  an  inhabitant  or  resident  of  this  state,  who  shall,  by  previous 
appointment  or  engagement  made  within  the  same,  fight  a  duel  without  the  jurisdiction 
of  the  state,  and  in  so  doing,  shall  inflict  a  mortal  wound  upon  any  person,  whereof  the 
person  so  injured  shall  afterwards  die,  within  this  state,  shall  be  deemed  guilty  of  mur- 
der witliin  this  state,  and  may  be  indicted,  tried,  and  convicted  in  the  county  where  such 
death  shall  happen.     Ibid.  sect.  3. 

Every  person,  being  an  inhabitant  or  resident  of  this  state,  who  shall,  by  previous 
appointment  or  engagement  made  within  the  same,  be  the  second  of  either  party,  in 
such  as  is  mentioned  in  the  preceding  section,  and  shall  be  present  as  second,  when 
such  mortal  wound  is  inflicted,  whereof  death  shall  ensue  within  this  state,  shall  be 
deemed  to  be  an  accessary  before  the  fact  to  the  crime  of  murder  in  this  state,  and  may 
be  indicted,  tried,  and  convicted  in  the  county  where  death  shall  happen.    Ibid.  sect'.  4. 

Any  person  indicted  under  either  of  the  two  preceding  sections,  may  plead  a  former 
conviction  or  acquittal  of  the  same  offence,  in  any  other  state  or  county,  and  such  plea, 
if  admitted  or  established,  shall  be  a  bar  to  all  further  or  other  proceedings  against  such 
person,  for  the  same  offence,  within  this  slate.     Ibid.  sect.  5. 

Every  person,  who  shall  commit  the  crime  of  manslaughter,  shall  be  punished  by  irn^ 
prisonmcnt  in  the  state  prison,  not  more  than  twenty  years,  or  by  fine  not  exceeding  one 
thousand  dollars,  and  imprisonment  in  the  county  jail  not  more  than  three  years.  Ibid.  sect.  9. 

Where  the  act  is  committed  deliberately,  and  is  likely  to  be  attended  with  dangerous 
consequences,  the  malice  requisite  to  murder  will  be  presumed  ;  for  the  law  infers  that  the 
natural  or  probable  eflccts  of  any  act  deliberately  done,  were  intended  by  the  actor. 
Commonwealth  v.  Drew,  4  Muss.  391. 

A  bare  trespass  against  the  property  of  another,  not  his  dwelling-house,  is  not  a 
suflicieiit  provocation  to  warrant  the  owner  in  using  a  deadly  weapon  in  its  defence; 
and  if  lie  do,  and  with  it  kill  the  trespasser,  it  will  be  murder.   Ibid. 

If  the  boating,  liowcvcr,  he  with  an  instrument  and  in  a  manner  not  likely  to  kill,  it 
will  bo  no  more  than  manslaughter.  Ibid. 

So,  if  any  one,  under  colour  or  claim  of  legal  auliiority,  unlawAilIy  arrest,  or  actually 
attempt  or -offtSr  to  arrest  another,  and  this  latter  in  his  resistance  kills  the  aggrcssqr, 
it  will  be  no  more  than  manslaughter.  Ibid. 

So  if  one,  not  a  stranger,  aids  the  injured  party  by  endeavouring  to  rescue  him, 


HISTORIA  PLACITORUM  CORONA.  454° 

or  to  prevent  an  unlawful  arrest  when  actually  attempted.  Commonwealth  v.  Drew, 
4  Mass.  39 1 . 

If  one,  assuming  to  be  a  physician,  however  ignorant  of  the  medical  art,  administers 
to  his  patient  remedies  which  result  in  his  death,  he  is  not  guilty  of  manslaughter, 
unless  he  has  so  much  knowledge  or  probable  information  of  the  fatal  tendency  of  his 
prescriptions  as  to  raise  a  presumption  of  obstinate,  wilful  rashness.  Commonwealth  v. 
Thompson,  6  Mass.  134. 

Where,  however,  such  person  has  opportunity  to  know  of  the  injurious  effects  of  his 
remedies,  and  then  administers  them,  it  would  be  competent  for  the  jury  to  find  him 
g-uilty  of  manslaughter,  even  though  he  might  not  have  intended  any  bodily  harm  to  his 
patient.    Commonwealth  v.  Thompson,  6  Muss.  134. 

Where  one,  having'  committed  a  homicide,  had  been  sent  to  the  house  of  correction, 
pursuant  to  Stat.  1797,  c.  61,  §  3,  as  a  person  dangerous  to  go  at  large,  and  was  then 
tried  for  murder,  and  acquitted  on  the  ground  of  insanity,  tiie  court  remanded  him  to 
the  house  of  correction  till  he  should  be  duly  discharged.  Commonwealth  v.  Meriam, 
7  Mass.  168. 

If  one  counsel  another  to  commit  suicide,  and  the  other,  through  the  influence  of  the 
advice,  kill  himself,  the  adviser  is  guilty  of  murder  as  principal.  The  presumption 
of  law  in  such  case  is,  that  the  advice  had  the  effect  intended  by  the  adviser,  unless  tlie 
contrary  be  shown.  Commonwealth  v.  Bowen,  13  Mass.  339. 

When  on  the  trial  of  an  indictment  for  murder,  the  killing  is  proved  to  have  been 
committed  by  the  defendant,  and  nothing  further  is  shown,  the  presumption  of  law  is, 
that  it  was  malicious,  and  an  act  of  murder,  and  proof  of  matter  of  excuse  or  extenuation 
lies  on  the  defendant.    Commonwealth  v.  York,  9  Metcalf,  93. 

PENNSYLVANIA. 

The  Act  o^  Ap-il  22d,  1794,  reciting  that,  whereas  the  design  of  punishment  is  to  pre- 
vent the  commission  of  crimes,  and  to  repair  the  injury  that  hath  been  done  thereby  to 
society,  or  the  individual;  and  it  hath  been  found  by  experience,  that  these  objects  are 
better  obtained  by  moderate,  but  certain  penalties,  than  by  severe  and  excessive  punish- 
ments; and  whereas  it  is  the  duty  of  every  government  to  endeavour  to  reform,  rather 
than  exterminate  offenders,  and  the  punishment  of  death  ought  never  to  be  inflicted 
where  it  is  not  absolutely  necessary  to  the  public  safety;  provides  that 

No  crime  whatsoever,  hereafter  committed,  except  murder  of  the  first  degree,  shall  be 
punished  with  death  in  the  state  oi Pennsylvaniq.. 

And  whereas  the  several  offences  which  are  included  under  the  general  denomination 
of  murder,  differ  so  greatly  from  each  other  in  the  degree  of  their  atrociousness,  that  it 
is  unjust  to  involve  them  in  the  same  punishment.  Sect.  1 ;  3  Dallas,  600;  3  Smith,  18C; 
Phr.  1th  ed.  861. 

All  murder  which  shall  be  perpetrated  by  means  of  poison,  or  lying  in  wait,  or  by  any 
other  kind  of  wilful,  deliberate  and  premeditated  killing,  or  which  shall  be  committed  in 
the  perpetration,  or  attempt  to  perpetrate  any  arson,  rape,  robbery,  or  burglary,  shall  be 
deemed  murder  of  the  first  degree ;  and  all  other  kinds  of  murder  shall  be  deemed 
murder  of  the  second  degree,  and  the  jury  before  whom  any  person  indicted  for  murder 
shall  be  tried,  shall,  if  they  find  such  person  guilty  thereof,  ascertain  in  their  verdict 
whether  it  be  murder  of  the  first  or  second  degree;  but  if  such  person  shall  be  convicted 
by  confession,  the  court  shall  proceed,  by  examination  of  witnesses,  to  determine  the  de- 
gree of  the  crime,  and  to  give  sentence  accordingly,  lb,  sect.  2.  See^ost.  Murder  in  the 
first  and  second  degree. 

Every  person  liable  to  be  prosecuted  for  petit  treason  shall  in  future,  be  indicted,  pro- 
ceeded against,  and  punished  as  \s  directed  in  other  kinds  of  murder.  Act  of  23d  April, 
1829,  Pamphlet,  p.  341 ;   Purdon,  7th  ed.  861. 

Wheresoever  any  person  shall  be  charged  with  involuntary  manslaughter,  happening  in 
consequence  of  an  unlawful  act,  it  shall  and  may  be  lawful  for  the  attorney-general,  or 
other  person  prosecuting  the  pleas  of  the  commonwealth,  with  the  leave  of  the  court,  to 
waive  the  felony,  and  to  proceed  against  and  charge  such  person  with  a  misdemeanor, 
and  to  give  in  evidence  any  act  or  acts  of  manslaughter ;  and  such  person  or  persons,  on 
conviction,  shall  be  fined  or  imprisoned,  as  in  cases  of  misdemeanor;  or  the  said  attor- 
ney-general, or  other  person  prosecuting  the  pleas  of  the  commonwealth,  may  charge 
both  offences  in  the  same  indictment,  in  which  case  the  jury  may  acquit  the  party  of 
one,  and  find  him  or  her  guilty  of  the  other  charge.     lb.  sect.  8. 

Every  person  covicted  of  murder  in  the  first  degree,  his  or  her  aiders,  abetters  and 
counsellors,  shall  suffer  death  by  hanging  by  the  neck.  Sec.  15. 
VOL.  I. 40 


454P  HISTORIA  PLACITORUM  CORONiE. 

Instead  of  the  penitentiary  punishment  heretofore  prescribed,  the  punishment  by 
solitary  confinement  at  labour,  shall  be  inflicted  upon  the  several  offenders-  who  shall, 
after  the  first  day  o?  July  next,  commit  and  be  legally  convicted  of  any  of  t-he  offences 
jiereinafter  enumerated  and  specified;  that  is  to  say  : 

,  Every  person  convicted  of  murder  in  the  second  degree,  shall  be  sentenced  to  undergo 
imprisonment  in  one  of  the  state  penitentiaries,  as  tlie  case  may  be,  and  be  kept  in  sepa- 
rate  or  solitary  confinement  at  labour  for  the  first  offence,  for  a  period  of  not  less  than 
lour,  nor  more  than  twelve  years,  and  for  the  second  offence  for  the  period  of  iiis  natural 
life,  and  be  fed,  clothed  and  treated  as  is  provided  in  tiiis  act. 

Every  person  duly  convicted  of  voluntary  manslaughter,  shall  be  sentenced  to  undergo 
a  similar  confinement  at  labor  for  the  first  offence,  for  a  period  not  less  than  two,  nor 
more  than  six  years;  for  a  second  offence  for  a  period  of  not  less  than  six,  nor  more 
tiian  twelve  years,  under  the  same  conditions  as  are  expressed  in  the  first  clause  of  this 
section,  and  to  give  security  on  conviction  either  for  the  first  or  second  offence,  for  good 
beliaviour  during  life,  or  for  any  less  time,  according  to  tlie  nature  and  enormity  of  the 
offence.    Act  of  23d  April,  1329,  sect,  i,  Pamph.  p.  341  ;  7th  ed.  Put  don,  862. 

The  act  of  Jl^riM  0th,  1834,  provides  :  •    -     . 

Whenever  hereafter  any  person  shall  be  condemned  to  suffer  death  by  hanging* for 
any  crime  of  which  he  or  she  shall  have  been  convicted,  the  said  punishment  shall 
be  inflicted  on  him  or  her  within  the  walls  or  yard  of  the  jail  of  the  county  in 
which  he  or  she  shall  have  been  convicted;  and  it  sliall  bo  the  diity  of  the  sheriff  or 
coroner  of  the  said  county  to  attend  and  be  present  at  such  execution,  to  which  he  shall 
invite  the  presence  of  a  pliysician,  attorney-general  or  deputy  attorney-general  of  the 
county,  and  twelve  reputable  citizens,  who  shall  be  selected  by  the  sheriff";  and  the  said 
sheriff  shall,  at  the  request  of  the  criminal,  permit  such  ministers  of  the  gospel,  not  ex- 
ceeding two,  as  he  or  she  may  name,  and  any  of  his  or  her  immediate  relatives,  to 
attend  and  be  present  at  sucli  execution,  together  with  such  officers  of  the  prison  and 
such  of  the  sheriff's  deputies  as  the  said  sheriff*  or  coroner  in  his  discretion  may  think  it 
expedient  to  have  present,  and  it  shall  be  only  permitted  to  the  persons  above  designated 
to  witness  the  said  execution:  Provided,  That  no  person  under  age  shall  be  permitted  on 
any  account  to  witness  the  same.  Sec.  1. 

After  the  execution,  the  said  sheriff  or  coroner  shall  make  oath  or  affirmation  in 
writing,  that  he  proceed  to  execute  the  said  criminal  within  the  walls  or  yard  afore- 
said,  at  the  time  designated  by  tiie  death-warrant  of  the  Governor,  and  the  same  shall 
be  filed  in  the  office  of  the  clerk  of  the  court  of  Oyer  and  Terminer  of  the  aforesaid 
county,  and  ^  copy  thereof  published  in  two  or  more  newspapers,  one  at  least  of  which 
shall  be  printed  in  the  county  where  the  execution  took  place.  Sec.  2.  Pamph.  L.  234. 
I'urd.  Dig.  7  ed.p.  945. 

Manslaughter,  though  distinguished  by  the  act  of  1794,  into  voluntary  and  involuntary, 
remains  in  other  respects  in  Pennsylvania  as  in  England.  Pennsylvania  v.  M'Fall, 
Addison,  256.  In  order  to  constitute  the  crime  of  voluntary  manslaughter,  evidence  of 
a  positive  intent  to  kill  is  not  necessary;  it  is  sufficient  if  there  be  such  acts  of  violence 
as  may  be  expected  to  produce  great  bodily  harm.  Involuntary  manslaughter  is  where 
it  plainly  appears  that  neither  death  nor  any  great  bodily  harm  was  intended,  bijt 
death  is  accidentally  caused  by  some  unlawful  act,  or  an  act  not  strictly  unlawful  in 
itself,  but  done  in  an  unlawful  manner,  and  without  due  caution.  Com.  v.  Gable,  IS.  Sf 
R.  428.  Under  the  act  of  1794,  the  attorney  general  must  prosecute  involuntary  rtian- 
siaughtcr  as  a  misdemeanor,    lliid. 

One  who  'is  indicted  for  murder,  cannot  be  convicted  of  involuntary  manslautshter ; 
because  it  is  well  settled  that  one  cannot  be  convicted  of  a  misdemeanor  on  an  indict- 
ment for  felony.     Com.  v.  Cahle,  7  iS.  Sf  It.  423. 

Passion,  arising  from  sufficient  provocation,  is  evidence  of  the  absence  of  malice,  and 
reduces  homicide  to  manslaughter;  but  passion,  without  provocation,  or  provocation 
without  passion,  is  not  sulFicieut :  and  when  tiicre  is  both  ]>rovocation  and  passion,  the 
provocation  must  be  sufficient.  Pennsylvania  v.  Honeyman,  Add.  149.  Pennsylvania  v. 
Bell,  id.  162. 

In  order  to  constitute  the  crime  of  vduntary  manslaughter,  evidence  of  a  positive  in- 
tent  to  kill,  is  not  necessary;  it  is  sufficient  if  there  he  such  acts  of  violence  as  may 
be  expected  to  produce  great  bodily  harm.  Commonwealth  v.  Gable,  7  S.  Sf  K. '^28. 
Til'^liman,  C.  .J. 

Every  act  which  apparently  must  do  harm;  which  is  done  with  intent  to  do  harnij 


HISTORIA  PLACITORUM  CORONA.  454'« 

ai)d  without  provocation,  and  of  which  death  is  the  consequence,  is  murder.     Pennsylva- 
nia V.  Honeyrnan,  Add.  148. 

Unlawful  killing,  with  a  design  to  kill,  is  murder  in  the  first  degree;  if  with  a  design 
only  to  hurt,  it  is  murder  in  the  second  degree.     Pennsylvania  v.  Lewis,  Add.  2B3. 

Premeditation  is  an  essential  ingredient  to  constitute  murder  in  the  first  degree,  under 
the  act  of  1794;  but  the  intention  slill  remains  the  true  criterion  of  tlie  crime,  and  the 
intention  of  the  party  can  only  be  collected  from  his  words  and  actions.  Respuhlica  v. 
Mulatto  Bob,  4  Dull.  146. 

If  one,  without  uttering  a  word,  should  strike  another  on  the  head  with  an  axe,  this 
would  be  deemed  a.  premeditated  violence,  within  the  act  of  1794.     Ibid. 

With  respect  to  tlje  three  modes  of  killing,  first  mentioned  in  the  act  of  1794,  viz.  by 
poison,  lying  in  wait,  or  any  other  kind  of  wilful  and  deliberate  killing,  the  intention  is 
the  essence  of  the  crime.  But  in  the  last  enumerated  mode,  viz.  in  the  perpetration  of  the 
crimes  mentioned  in  the  act,  the  intention  is  excluded  as  not  necessary  to  constitute  mur- 
der in  the  first  degree.     Com.  v.  Dougherty,  before  Rush,  Pres.     1  Br.  Appx.  xviii. 

Wlierever  it  appears,  from  the  whole  evidence,  ihat  the  crime  was,  at  the  moment, 
deliberately  or  intentionally  executed,  the  killing  is  murder  in  the  first  degree.     Ibid. 

It  is  sufficient  to  constitute  the  crime  if  the  circumstances  of  wilfulness  and  delibera- 
tion were  proven,  although  they  arose  and  were  generated  at  \he  period  of  the  transaction. 
Jbid.     Pennsylvania  v.  McFall,  Add.  257. 

If  the  party  killing  had  time  to  think,  and  did  intend  to  kill,  for  a  minute,  as  well  as 
an  hour  or  a  day,  it  is  a  deliberate,  wiltul,  and  premeditated  killing,  constituting  murder 
in  the  first  degree,  within  the  act  of  Assembly.  Com.  v.  Richard  Smith,  Oyer  and  Ter- 
miner, Philad.  1816,  before  Rush,  Pres.,  Pamphlet  231.  Com.  v.  O'Hara,  before  McKean, 
C.  J.,  cited  ibid. 

The  common  law  implied  malice  in  every  unlawful  killing,  and  the  burden  of  proof  of 
extenuating  circumstances  lay  on  the  defendant.  Pennsylvania  v.  Honeyrnan,  Add.  148. 
Pennsylvania  \.  Bell,  id.  171.  Pennsylvania  v.  McFall,  id.  257.  Pennsylvania  v.  Lewis 
^  al.,  id.  282. 

Involuntary  manslaughter  is,  where  it  plainly  appears  that  neither  death  nor  any 
great  bodily  harm  was  intended,  but  death  is  accidentally  caused  by  some  unlawful  act, 
or  an  act  not  strictly  unlawful  in  itself,  but  done  in  an  unlawful  manner,  and  without 
due  caution.     Ibid, 

Killing  by  a  blow,  in  mutual  conflict,  without  necessity  either  for  the  protection  of 
life,  or  the  possession  of  house,  &c.  is  manslaughter.  If  necessary  for  such  purpose,  it  is 
homicide  in  self  defence.     Pennsylvania  v.  Robertson,  Add.  248. 

Manslaughter,  though  distinguished  by  the  act  of  1794,  into  voluntary  and  involuntary, 
remains  in  other  respects  here  as  in  England.     Pennsylvania  v.  McFall,  Add.  256. 

But  since  the  Act  of  1794,  the  burthen  of  proof  lies  on  the  Commonwealth;  unless  the 
circumstances  of  malice  are  proved,  it  is  murder  only  of  the  second  degree.  Co7n.  v. 
O'Hara,  ut  supra. 

Under  the  Act  of  Assembly,  an  unlawful  killing,  though  it  may  he  presumed  murder, 
will  not  be  presumed  murder  in  the  Jirst  degree.   Pennsylvania  v.  Lewis,  Add.  282-3. 

Drunkenness  does  not  incapacitate  a  man  from  forming  a  premeditated  design  of  mur- 
der; but  as  drunkenness  clouds  the  understanding,  and  excites  passion,  it  may  be  evi- 
dence of  passion  onl}-,  and  of  want  of  malice  and  design.  Pennsylvania  v.  McFall,  Add. 
257. 

If  a  person  who  has  determined  to  take  the  life  of  another,  seizes  a  musket  to  carry 
that  intention  into  effect,  not  knowing  whether  it  was  loaded  or  otherwise,  but  with  the 
expectation  and  desire  that  it  should  be,  he  is  guilty  of  murder  in  any  killing  consequent 
upon  its  discharge.    Cominonwealth  v.  Green,  1  Ashmead,  289. 

When  a  wound  is  not  mortal  in  itself,  but  for  want  of  proper  application  or  from  ne- 
glect, turns  to  gangrene  or  fever,  and  that  gangrene  or  fever  is  the  immediate  cause  of 
the  death  of  the  party  wounded,  the  party  by  whom  the  wound  was  given  is  guilty  of 
murder  or  manslaughter,  according  to  the  circumstances  of  the  case.    Ibid. 

To  warrant  a  conviction  of  murder  in  the  first  degree,  it  is  not  essential  that  the 
weapons  used  should  necessarily  nroduce  death.    Com.  v.  Murray,  2  Ashmead,  41. 

When  the  deceased  was  killft  by  means  of  blows  inflicted  by  a  club  not  quite  as 
thick  as  an  axe  handle,  held  and  used  by  one  person,  and  by  a  leather  strap  with  a  metal 
buckle  at  each  end,  held  and  used  by  another  person,  it  was  held  that  this  was  murder  in 
Uie  first  degree.    Ibid. 

If  a  pregnant  woman  be  killed  in  an  attempt  by  another  person  to  produce  abortion  in 


454'  HISTORIA  PLACITORUM  CORONA. 

her,  this  will  only  be  murder  in  the  second  degree,  IT  the  perpetrator  did  not  intend  to 
take  the  life  of  the  mother.    Ex  parte  Chauncey,  2  Ashmead,  2'27.  per  King,  Frest. 

It  is  a  fixed  principle,  that  if,  from  tlie  weapon  or  the  manner  of  striking-,  an  intention 
to  kill  may  or  must  be  collected  ;  provocation  by  words  only,  is  not  sufficient  to  make 
the  killing,  but  manslaughter.  ^Pennsylvania  v.  Bdl,  Add.  163. 

See  2)ost,  454,  t. 

MARYLAND. 

The  Act  of  1809,  Ch.  138,  may  be  considered  the  basis  of  the  law  of  homicide,  and 
indeed  of  the  whole  criminal  jurisprudence  of  the  state  of  Maryland.  The  od  Section  of 
this  Act  defines  murder  of  the  first  degree  to  be,  "  all  murder  which  shall  be  perpetrated 
by  means  of  poison,  or  by  lying  in  wait,  or  by  any  kind  of  wilfiil,  deliberate,  and  pre- 
meditated  killing,  or  which  shall  be  committed  in  the  perpetration  of,  or  attempt  to  per- 
petrate any  arson,  or  to  burn  any  barn,  tobacco-house,  stable,  warehouse,  or  other  out- 
house, not  parcel  of  any  dwelling-house,  having  therein  any  tobacco,  grain,  hay,  horses, 
cattle  or  goods,  wares  and  merchandize,  rape,  sodomy,  mayhem,  robbery  or  burglary." 
All  other  murder  is  deemed  murder  of  the  second  degree.  Manslaughter  is  not  defined 
in  the  statute,  and  the  offence  remains  the  same  as  at  common  law. 

Sec.  4tl),  thus  determines  the  punishment  of  these  crimes.  Every  person  convicted  of 
murder  of  the  first  degree,  his  or  her  aiders  or  abettors  and  councillors  shall  suffer  death 
by  hanging  ;  every  person  duly  convicted  of  murder  in  the  second  degree,  or  as  acces- 
sory thereto,  shall  be  confined  in  the  penitentiary  for  from  five  to  eighteen  years;  every 
person  convicted  of  manslaughter,  shall  be  confined  in  the  penitentiary  for  a  term  not 
exceeding  ten  years.  The  Act  of  1825,  Ch.  93,  Sec.  1,  enacts  that  no  sentence  to  the 
penitentiary  shall  be  for  less  than  two  years.  The  terms  of  confinement  with  the  limita- 
tions aforesaid,  are  in  the  discretion  of  the  Court.  Sec.  16.  No  conviction  or  attainder 
works  corruption  of  blood  or  forfeiture  of  estate;  nor  can  sentence  of  death  be  executed 
within  less  than  twenty  days  after  judgment.  The  Governor,  in  whom  is  lodged  the 
pardoning  and  commuting  power,  is  empowered  and  required  to  issue  a  warrant  to  the 
Sheriff,  and  appoint  the  day  of  execution.  1795,  CA.  82,  Sec.  1.  Thougli  forfeiture  of 
estate  does  not  result,  the  estate  of  persons  sentenced  to  be  hung  is  still  liable,  after  repa- 
ration made  to  the  injured  party  for  the  expenses  of  the  State.  Standing  mute  is  equiva- 
lent to  a  plea  of  not  guilty,  and  the  trial  proceeds  as  if  such  plea  had  been  actually  put 
in.  Sec.  12.  In  all  capital  cases  the  right  of  cliallenge  exists  without  cause  to  twenty 
jurors,  and  with  cause  to  any  number.  Sec.  13.  Foreigners  who  are  indicted  for  an 
offence  committed  within  the  State,  are  to  be  tried  by  a  jury  of  the  county,  and  cannot 
challenge  for  want  of  foreigners  on  the  panel  returned.  Sec.  15.  The  venue  is  laid  in 
the  county  where  the  mortal  stroke  or  poison  has  been  given,  and  not  where  the  conse- 
quent  death  occurs;  unless  the  mortal  stroke  be  given  on  Chesapeake  Bay  and  the  death 
take  place  in  any  county  of  tlie  State,  when  the  place  of  death  becomes  the  venue.  So 
where  the  blow  and  death  both  occur  on  the  bay,  the  place  of  arrest  is  the  place  of  trial. 
Sees.  17,  18,  19.  The  venue  may  be  changed  to  an  adjoining  county,  on  suggestion  sup- 
ported by  affidavit,  that  an  impartial  trial  cannot  be  had  in  the  county  where  the  indict- 
ment is  found.  Sec.  20.  But  the  person  moving  the  change,  must  have  resided  in  the 
county  at  least  twelve  months  before  indictment.  1821,  Ch.  244. 

By  the  Act  of  1817,  Ch.  72,  Svc.  2,  convicts  confined  in  the  penitentiary  may  be  wit- 
nesses against  each  other  for  crimes  committed  in  tlie  penitentiary. 

No  slave  can  be  confined  in  the  penitentiary,  but  when  not  punishable  with  death,  ia 
punished  with  whipping,  banishment,  or  sale  into  some  foreign  country.  1818,  ch.  1^7. 
And  a  free  negro  after  having  once  been  an  inmate  of  the  penitentiary,  may  be,  upon 
conviction  of  a  second  offence,  sold  into  foreign  bondage.  1835,  ch.  200,  sec.  3. 

The  act  of  1824,  ch.  144,  presents  a  new  element  in  murder  of  the  first  degree.  It  is 
there  enacted,  that  all  murder  committed  in  the  arrest  and  imprisonment,  or  attempt  to 
arrest  or  imprison,  with  a  view  to  a  forcible  removal  from  the  state,  any  free  person  or 
one  entitled  to  freedom  after  a  certain  time,  by  one  who  knows  such  person  to  be  free, 
shall  be  deemed  murder  of  the  first  degree.  ^ 

The  Maryland  Reports  contain  no  cases  which  elucidate  the  law  of  homicide.  It 
was,  however,  decided  in  the  case  of  The  State  of  Maryland  v.  Negro  Jesse  Evans, 
7  Gill  Sf  John.  290,  that  where  a  statute  creates  an  offence  which  did  not  exist  at 
common  law,  or  changes  the  nature  or  degree  of  an  offence  existing  at  common  law, 
there  an  indictment  for  such  an  oftence  must  conclude  ngainst  the  form  of  the  statute; 
but  if  a  statute  only  direct  a  dillerent  mode  of  punishment  for  a  common  law  offence, 


HISTORIA  PLACITORUM  CORONA.  454' 

the  indictment  may  conclude  ag-ainst  the  peace.  An  indictment  concluding  contra  pacem, 
charges  only  a  violation  of  the  common  law,  and  with  such  an  indictment  the  accused 
need  only  refer  when  preparing  for  his  defence  to  the  criminal  code  of  the  common 
law  to  ascertain  what  are  the  ingredients  constituting  the  offence  charged,  and  what 
will  vindicate  or  excuse  him. 

By  the  l[)th  section  of  the  Bill  of  Rights,  it  is  the  right  of  every  man  to  be  informed 
of  a  criminal  accusation  against  him,  and  to  have  a  copy  of  the  indictment  in  due  time 
to  prepare  for  his  defence. 

SOUTH  CAROLINA. 

The  acts  of  this  State  on  the  subject  of  homicide  are — 

The  act  of  1821,  6  Sts.  at  large,  158,  which  makes  the  "malicious,  wilful,  and 
deliberate  murder"  of  a  slave,  a  capital  felony;  and  punishes  the  killing  a  slave  "  on 
sudden  heat  tfnd  passion,"  with  fine  and  imprisonment.  It  has  been  decided  on  these 
acts»  that  the  offences  punished  by  it,  contain  no  other  ingredients  than  murder  and 
manslaughter  at  common  law,  and  that  the  common  law  definitions  of  murder  and  man- 
slaughter apply  to  them  respectively.    MS. 

The  act  of  1833,  6  -S.  L.  489,  abolishes  branding,  and  substitutes  fine  and  im- 
prisonment in  all  cases.     This  applies  to  homicide  by  manslaughter. 

The  act  of  1840,  §  39.  7  S.  L.  411,  makes  the  master,  or  person  having  charge  of 
a  slave,  responsible  for  the  death  of  a  slave  killed  when  no  other  white  person  is  present; 
but  in  such  case,  the  master,  or  other  person  in  charge,  may  exculpate  himself  by  oath. 

The  statute  of  stabbing,  1  Jac.  1,  c.  8,  has  been  made  of  force  in  South  Carolina. 
2S.  Z/.  507.  So  also  the  .S'(s.  52.  Hen.  3.  c.  25;  2  S.  L.  418.  and  all  other  ancient  statutes, 
ousting  murder  of  clergy  are  understood  to  be  offeree  by  virtue  of  the  general  provisions 
oftheact  of  1712,  2-S:  L.  413.  §2. 

In  this  State  the  following  cases  recognise  the  common  law  doctrine: 

The  general  distinction  between  murder  and  manslaughter  is,  that  the  killing  in  the 
first  instance  must  be  accompanied  with  malice  aforethought,  either  express  or  implied. 
To  constitute  the  latter,  it  must  be  the  result  of  sudden  heat  and  passion.  State  v.  Toohey, 
2  Rice,  S.  C.  Dig.  104. 

But  although  this  general  distinction  is  well  understood  and  universally  admitted,  yet 
the  shades  of  difference  are  many  times  so  small  as  to  render  them  difficult  to  be  per- 
ceived, and  in  the  application  of  the  rule  to  particular  cases,  much  must  always  be  left 
to  the  sound  discretion  of  the  court  and  jury.  It  is  true  in  general,  that  when  death 
ensues  from  a  sudden  affray,  it  is  considered  only  as  manslaughter;  but  that  is  where 
a  sudden  quarrel  rises  without  any  intention  to  kill  or  injure  another  materially,  and  in 
the  course  of  the  scuffle,  after  the  parties  are  heated  by  the  contest,  one  kills  the  other 
with  a  deadly  weapon.  But  there  is  no  case  where  an  unprovoked  attack  has  been  made 
on  a  person  with  a  deadly  weapon,  and  death  has  ensued,  that  it  has  been  held  to  be 
manslaughter  merely  because  it  was  sudden.  Such  a  decision  would  go  to  protect  one 
who  should  fall  upon  another  suddenly,  and  take  his  life,  though  actuated  by  the  most 
deep-rooted  malignity.  There  is  a  difference  between  a  sudden  affray  and  sudden  attack. 
An  affray  means  something  like  a  mutual  contest  suddenly  enacted  without  an  appar- 
ent intention  to  do  great  bodily  harm.  But  malice  is  implied  from  every  unprovoked 
attack  upon  a  person  with  a  deadly  weapon,  without  any  apparent  cause.     Ibid. 

In  an  indictment  against  two  persons,  Michael  and  Martin  Toohey,  for  murder,  where 
the  jury  found  one  {Michael)  guilty  of  manslaughter,  and  the  other  {Martin)  guilty  of 
murder;  on  a  motion  for  a  new  trial  on  behalf  of  Martin  Toohey,  the  court  held,  among 
other  things,  that  it  belonged  to  the  jury  to  determine  who  gave  the  mortal  blow,  and 
observed,  "Even  if  we  admit  that  it  was  given  by  Michael.,  yet  this  verdict  might  be 
supported  if  they  were  acting  in  concert."  It  would  only  prove  that  they  ought  both 
to  have  been  convicted,  and  the  wrongful  acquittal  of  one,  would  not  entitle  the  other  to 
exemj)lion.  It  is  abundantly  manifest  that  the  deceased  came  to  his  death  by  one  of 
these  defendants,  and  it  belonged  to  the  jury  to  judge  of  their  respective  guilt. 

Another  fact  assumed  by  the- defendants'  counsel,  that  the  passions  of  tiie  defendant 
were  excited  by  an  unintended  jostle  of  the  prisoner  or  his  wife  by  the  deceased,  is 
equally  unsupported  by  proof,  and  unavailing  if  true.  In  a  city  like  Charleston,  where 
many  persons  are  constantly  passing  until  a  late  hour  of  the  night,  the  accidental  im- 
pinging of  one  upon  another  in  the  dark  would  not  authorize  such  a  murderous  attack 
upon  him.     Such  iii  act  of  itself  would  be  a  sure  indication  of  a  "depraved  and  wicked 


•454*  HISTORIA  PLACITORUM  CORONA. 

heart,  void  of  all  social  duty,  and  fatally  bent  on  mischief."  Slate  v.  Toohey,  2  Rice, 
S.  C.  Digest,  lOi. 

Every  homicide  must  be  accompanied  with  malice  to  make  it  murder;  but  so  regard- 
ful is  the  law  of'human  life,  that  it  presumes  every  homicide  to  be  accompanied  with 
malice,  unless  the  contrary  shall  appear.  Malice  is  said  to  exist  whenever  the  circum- 
stances attending  the  homicide  exhibit  the  feelings  of  a  wicked  heart,  regardless  of 
social  duty  and  fatally  bent  on  miscliief.  It  is  inconsistent  with  the  lessons  of  expe- 
rience, the  dictates  of  reason,  and  the  highest  authority  to  conclude,  because  the  homi- 
cide was  committed  in  a  passion,  {furor  brevis,)  he  was  not  under  the  influence  of  a 
wicked  heart.  If  without  provocation  he  let  loose  his  angry  passions,  which  social 
duty  required  him  to  control,  and  inflicted  a  death  blow  upon  an  unoffending  brother, 
he  exhibits  that  malevolence  of  heart  which  makes  him  in  the  language  of  the  law, 
hostis  humani  generis.     State  v.  Peters,  2  Rice,  S.  C.  Digest,  105. 

If  a  slave  kill  his  master  whilst  the  latter  is  correcting  him,  it  is  murder  at  common 
law;  and  those  present  aiding  and  abetting  arc  guilty  of  the  same  offence.  They 
would  even  be  guilty  as  principals  in  the  first  degree,  although  the  actual  perpetrator 
himself  were  guilty  of  no  crime  if  they  made  use  of  him  as  the  instrument  to  effect 
their  own  deliberate  purpose  of  destroying  the  deceased.  State  v.  Crank,  2  Bail.  Rep.  64. 
2  Rice's  S.C.  Dig.  IQC). 

So  long  as  a  party  liable  to  arrest  endeavours  peaceably  to  avoid  it  he  may  not  be 
killed;  but  whenever,  by  his  conduct,  lie  puts  in  jeopardy  the  life  of  any  attempting  to 
arrest  him,  he  may  be  killed,  and  the  act  may  be  excusable.  State  v.  Anderson,  1  Hill, 
S.C.  Rep.  •627. 

If  one  in  sudden  heat  of  passion  take  the  life  of  another,  it  is  manslaughter,  and  not 
murder;  but  there  must  be  reasonable  provocation,  and  what  will  constitute  it,  is  the 
principal  difficulty  in  applying  the  distinction.  The  line  which  distinguishes  between 
those  provocations,  which  will  and  will  not  extenuate  the  offences,  cannot  be  certainly 
defined.  Such  provocations  as  are  in  themselves  calculated  to  provoke  a  high  degree  of 
resentment,  and  ordinarily  induce  a  great  degree  of  violence  wlien  compared  with  those 
which  are  slight  and  trivial,  and  from  which  a  great  degree  of  violence  does  not  usually 
follow,  may  serve  to  mark  the  distinction. 

But  no  provocation,  however  grievous,  will  excuse  from  the  crime  of  murder,  where 
from  the  weapon,  or  the  manner  of  the  assault,  an  intention  to  kill  or  to  do  some  great 
bodily  harm  was  manifest. 

If  one  interfere  in  an  aff'ray  to  separate  the  combatants,  and  give  notice  of  his  intent, 
and  is  slain  by  one  of  the  combatants,  it  is  nmrder. 

The  prisoner  and  one  W.  engaged  in  a  fight,  and  were  separated  by  the  deceased. 
Some  time  after  tlie  fight  was  renewed,  and  tlie  deceased  again  interfered  ;  but  being 
unable  to  take  the  prisoner  off',  called  a  negro  to  his  assistance,  who,  in  tlie  act  of  sepa- 
rating the  combatants,  threw  the  prisoner  against  the  wall.  The  prisoner  then  made  at 
the  deceased  (who  endeavoured  to  avoid  him)  with  a  knife,  and  inflicted  a  mortal  blow: 
Held,  that  this  was  a  case  of  murder.  State  v.  Ferguson,  2  Hill,  S.  C.  Rep.  619.  2  Rice's 
Digest,  106,  107. 

MURDER  OF  THE  FIRST  AND  SECOND  DEGREES. 

The  murder  of  the  common  law  is,  in  many  parts  of  the  United  States,  divided  into 
murder  of  the  first  and  second  degrees.  The  distinction  of  murder  into  two  degrees,  is 
found  in  Pennsylvania,  Maine,  New  Hampshire,  New  Jersey,  Virginia,  Alabama,  Ten- 
nessee,  Maryland,  Michigan  and  Ohio.  The  distinctions  in  all  these  states,  except  Ohio 
and  Maiyland,  are  substantially  the  same,  and  nearly  in  the  same  language. 

In  Maine. — Whoever  shall,  unlawfully,  kill  any  human  being,  with  malice  afore- 
thought, either  express  or  implied,  shall  be  deemed  guilty  of  murder. — Rev.  Stat.ch.  154. 
sect.  1. 

Whoever  shall  commit  murder,  with  express  malice  aforethought,  or  in  perpetrating, 
or  attempting  to  [)cr])etrate  any  crime  punishable  with  death,  or  imprisonment  in  the 
state  prison  for  life,  or  liir  an  unlimited  term  of  years,  shall  be  deemed  guilty  of  murder 
of  the  first  degree,  and  shall  be  punished  with  death. — Iliid.  sect.  2. 

Whoever  shall  commit  murder,  otherwise  than  is  set  forth  in  the  preceding  section, 
shall  be  deemed  guilty  of  murder  in  the  second  degree,  and  shall  be  punished  by  impri- 
BOTiment  for  life  in  the  state  prison. —  Jliid.  sect.  .'J.  % 

Section  4,  provides  that,  upon  an  indictment  for  murder,  the  jury  shall  inquire  and  find 


HISTORIA  PLACITORUxM  CORON.E.  454^ 

whether  the  offence  be  of  the  first  or  second  degree,  or,  if  confessed,  the  court  shall  make 
the  inquiry. 

In  New  Hampshire. — All  murder  committed  by  poi>on,  starvinsr,  torture,  or  other  de- 
liberate and  premeditated  killinjr,  or  committed  in  the  pcqietration,  or  in  the  attempt  at 
the  perpetration  of  arson,  rape,  robbery,  or  burglary,  is  murder  of  the  first  degree;  and 
all  murder  not  of  the  first  degree  is  of  the  second  degree.  If  the  jury  shall  find  any  per- 
son guilty  of  murder,they  shall  also  find,  by  their  verdict,  whether  it  is  of  the  first  or 
second  degree. — Rev.  Stat.  chap.  214.  sect.  1. 

If  any  person  shall  plead  guilty  to  an  indictment  for  murder,  the  court  having  cogni- 
zance tlierecf  shall  determine  the  degree. — Ihid.  sect.  2. 

'J  he  punishment  of  murder  in  the  first  degree  shall  be  death,  and  the  punishment  .of 
murder  in  the  second  degree  shall  be  solitary  imprisonment,  not  exceeding  three  years, 
and  confinement  to  hard  labour  for  life. — Jbid.  sect.  3. 

In  Pennsylvania. —  No  crime,  whatsoever,  hereafter  committed,  (except  murder  in  the 
first  degree,)  shall  be  punished  with  death  in  the  state  of  Pennsylvania. — Act  22d  April, 
1794.  3  Smith's  Laws,  136;  7th.  ed.  Purdon,  861. 

All  murder,  which  shall  be  perpetrated  by  means  of  poison,  or  by  lying  in  wait,  or  by 
an}'  other  kind  of  wilful,  deliberate  and  premeditated  killing,  or  which  shall  be  com- 
mitted in  the  perpetration  or  attempt  to  perpetrate  any  arson,  rape,  robbery  or  burglary, 
shall  be  deemed  murder  of  the  first  degree;  and  all  other  kinds  of  murder  siiall  be  deemed 
murder  of  the  second  degree;  and  the  jury,  before  whom  any  person  indicted  for  mur- 
der, shall  be  tried,  shall,  if  they  find  such  person  guilty  thereof,  ascertain,  in  their  ver- 
dict, whether  it  be  murder  in  the  first  or  -second  degree;  but  if  such  person  siiall  be 
convicted  by  confession,  the  court  siiall  proceed,  by  examination  of  witnesses,  to  deter- 
mine  the  degree  of  the  crime,  and  to  give  sentence  accordingly. — Ibid.  Sect.  2.  See 
ante,  p.  554." 

In  New  Jersey. — All  murder  which  shall  be  perpetrated  by  means  of  poison,  or  bv 
lying  in  wait,  or  by  any  other  kind  of  wilful,  deliberate,  and  premeditated  killing,  or 
which  shall  be  committed  in  perpetrating,  or  attempting  to  perpetrate,  any  arson,  rape, 
sodo^ny,  robbery,  or  burglary,  shall  be  deemed  murder  of  the  first  degree;  and  all  other 
kinds  of  murder  shall  be  deemed  murder  of  the  second  degree;  and  the  jury,  before  whom 
any  person  indicted  for  murder,  shall  be  tried  shall,  if  they  find  such  person  guilty 
thereof,  designate,  by  their  verdict,  whether  it  be  murder  in  the  first  or  second  decree; 
but  if  such  person  shall  be  convicted  on  confession,  in  open  court,  the  court  shall  proceed, 
by  examination  of  witnesses,  to  determine  the  degree  of  the  crime,  and  give  sentence 
accordingly — (An  act,  supplementary  to  an  act  entitled,  "  An  act  for  the  punishment 
of  crimes,"  passed  the  seventeenth  day  of  February,  eighteen  hundred  and  twenty-nine, 
sect.  1.) 

Every  person  convicted  of  murder  of  the  first  degree,  his  or  her  aiders,  abettors, 
counsellors  and  procurers  shall  suffer  death;  and  every  person  convicted  of  murder  of  the 
second  degree,  shall  suffer  imprisonment  at  hard  labour,  for  any  term,  not  less  than  five, 
nor  more  than  twenty  years. — Sec.  2. 

In  Virginia. — All  murder,  which  shall  be  perpetrated  by  means  of  poison,  or  by  lying 
in  wait,  or  by  duress  of  imprisonment  or  confinement,  or  by  starving,  or  by  wilful,  ma- 
licious and  excessive  whipi)ing,  beating,  or  other  cruel  treatment  or  torture,  or  by  any 
othor  kind  of  wilful,  deliberate  and  premeditated  killing,  or  which  shall  be  conmiitted  in 
the  perpetration  or  attempt  to  perpetrate,  any  arson,  rape,  robbery,  or  burglar}',  shall 
henceforth  be  deemed  murder  in  the  first  degree;  and  all  other  kinds  of  murder  shall  be 
deemed  murder  of  the  second  degree;  and  the  jury,  before  whom  any  person,  indicted 
for  murder,  shall  be  tried,  shall,  if  they  find  such  person  guilty  thereof,  ascertain,  in  their 
verdict,  whether  it  be  murder  in  the  first  or  second  degree;  but  if  such  person  shall  bo 
convicted  by  confession,  the  court  shall  proceed  by  examination  of  witnesses,  to  de- 
tcrmine  the  degree  of  the  crime,  and  to  give  sentence  accordingly.— iZ.  C.  chap.  171. 
sect.  2, 

In  Alabama. — Every  homicide,  which  shall  be  perpetrated  by  means  of  poison,  lying 
in  wait,  or  by  any  other  kind  of  wilful,  deliberate,  and  premeditated  killing,  or  which 


454"  HISTORIA  PLACITORUM  CORONA. 

shall  be  committed  in  the  perpetration  of,  or  in  the  attempt  to  perpetrate,  any  arson,  rape, 
robbery,  or  burglary,  shall  be  deemed  murder  in  the  first  degre(i;  so,  also,  every  homicide 
perpetrutcd  from  a  premeditated  design,  unlawfully  and  maliciously  to  effect  the  death 
of  any  human  being,  other  than  him  who  is  slain,  or  perpetrated  by  an  act  imminently 
dangerous  to  the  life  of  others,  and  evincing  a  depraved  mind,  regardless  of  human  life, 
although  without  any  preconceived  purpose  to  deprive  of  life  any  particular  individual; 
and  every  person,  guilty  of  murder  in  the  first  degree,  shall,  on  conviction,  sutfer  death, 
or  confinement  in  the  penitentiary  for  life,  at  the  discretion  of  the  jury  trying  the  same. 
Penal  Code,  chap.  111.  sect.  1.  Clay's  Digest,  412. 

The  next  section  provides  that  all  other  cases  of  murder,  at  common  law,  shall  be 
murder  in  the  second  degree;  and  punishable  by  imprisonment  for  not  less  than  ten 
years. 

In  Tennessee, — All  murder  which  shall  be  perpetrated  by  means  of  poison,  lying  in 
■wait,  or  by  any  other  kind  of  wilful,  deliberate,  malicious  and  premeditated  killing,  or 
shall  be  committed  in  the  perpetration  of,  or  attempt  to  perpetrate  any  arson,  rape,  robbery, 
burglary  or  larceny,  shall  be  deemed  murder  in  the  first  degree;  and  all  other  kinds  of 
murder  shall  be  deemed  murder  in  the  second  degree;  and  the  jury,  before  whom  any 
person  indicted  for  rnurder  shall  be  tried,  shall,  if  they  find  such  person  guilty  thereof, 
ascertain,  in  tiieir  verdict,  whether  it  be  murder  in  the  first  or  second  degree;  but  if  such 
person  sliall  confess  his  guilt,  the  court  shall  proceed  by  the  empanelling  of  a  jury  and 
examination  of  testimony,  to  find  and  determine  the  degree  of  tlie  crime,  and  to  give 
sentence  accordingly. — Act  ]829,  sect.  3.  Laws  of  Tennessee,  p.  316. 

In  Michigan. — All  murder,  which  shall  be  perpetrated  by  means  of  poison  or  lying  in 
wait,  or  any  other  kind  of  wilful,  deliberate  and  premeditated  killing,  or  which  shall  be 
committed  in  the  perpetration  or  attempt  to  perpetrate  any  arson,  rape,  robbery  or  bur- 
glary, shall  be  deemed  murder  of  the  first  degree,  and  shall  be  punished  with  deatli;  and 
all  other  kinds  of  murder  shall  be  deemed  murder  of  the  second  degree,  and  shall  be 
punished  by  confinement  in  the  penitentiary  for  life,  or  any  term  of  years  at  the  discre- 
tion of  the  court  trying  the  same. — Rev.  Stat,  part  4.  tit.  1.  ch.  3.  sect.  1. 

In  Maryland. —  All  murder  which  shall  be  perpetrated  by  means  of  poison,  or  by  lying 
wait,  or  by  any  kind  of  wilful,  deliberate  and  premeditated  killing,  or  which  shall  be 
committed  in  the  perpetration  of,  or  attempt  to  perpetrate  any  arson,  or  to  burn  any  barn, 
tobacco-house,  stable,  warehouse,  or  other  out-house,  not  parcel  of  any  dwelling-house, 
having  therein  any  tobacco,  grain,  hay,  horses,  cattle  or  goods,  wares  and  merchandize, 
rape,  sodomy,  mayhem  or  burglary,  is  murder  of  the  first  degree,  and  all  other  murder, 
is  murder  of  the  second  degree.     Act  of  1809,  ch,  138. 

In  Ohio.  If  any  person  shall  purposely,  and  of  deliberate  and  premeditated  malice,  or 
in  the  perpetration,  or  attempt  to  perpetrate,  any  rape,  arson,  robbery,  or  burglary,  or  by 
administering  poison,  or  causing  the  same  to  be  done,  kill  another,  every  such  person 
shall  be  deemed  guilty  of  murder  in  the  first  degree,  and  upon  conviction  thereof,  shall 
suffer  death.  If  any  person  shall  purposely  and  maliciously,  but  without  delibera- 
tion and  premeditation,  kill  another,  every  such  person  shall  be  deemed  guilty  of  mur- 
der in  the  second  degree,  and  on  conviction  thereof,  shall  be  imprisoned  in  the  peniten- 
tiary, and  be  kept  at  hard  labour  during  life.    Act  of  March  7,  18.35,  {Statutes  p.  229.) 

These  acts  have  not  affected  the  meaning  of  the  term  murder,  nor  changed  the  common 
law  doctrine,  exce])ting  to  designate  certain  classes  of  murder,  by  the  prefix, /irst,  and  all 
other  kinds  by  the  prefix  second,  and  to  assign  to  each  kind  of  killing  a  distinct  punish- 
ment— both  kinds  being  murder,  at  common  law.  The  tests  by  which  to  ascertain — mur- 
dcr  generally  being  proved — to  which  degree;  the  case  belongs,  are  to  be  found,  either,  IQ 
the  existence  of  certain  facts  connected  with  the  manner  or  circumstances  of  the  killing, 
or  in  the  condition  of  the  mind  of  the  accused  at  or  before  the  moment  of  the  killing.  As 
to  the  former,  if  murder  be  by  poison,  by  lying  in  wait,  by  starving,  or  in  the  perpetration 
or  attempt  to  perpetrate  arson,  ra|)e,  robbery,  or  burglary,  &c.  as  set  forth  in  the  several 
statutes;  and,  as  to  tho  latter,  if  it  be  murder,  with  express  malice  aforethought,  wilful, 
deliberate,  premeditated,  &c.  as  also  set  forth  in  the  several  statutes — in  eillier  of  these 


HISTORIA  PLACrrORUM  CORONA.  4M' 

cases,  the  killing  is  murder  of  the  first  degree — all  other  species  of  killing,  which  are 
murder  at  common  law,  are  murder  of  the  second  degree. 

It'tlie  killing  be  in  either  of  tiie  modes,  or  under  either  of  the  circumstances  specifically 
mentioned  in  the  statutes,  the  conclusion  is  inevitable  that  the  accused  is  guilty  of  mur- 
der of  the  first  degree.  The  chief  points  for  discussion  and  decision,  and  the  material 
ditHculty  in  applying  the  law  to  particular  cases,  arises  under  the  second  clause.  What 
is  deliberation,  express  malice  aforethought,  wilfulness  and  premeditation,  and  what  state 
of  facts  includes  a  conclusion  of  their  e.\istence? 

The  earliest  case  in  Pennsylvania,  under  the  act  of  Assembly  of  1794,  (the  earliest  in 
any  of  the  States,)  is  the  Commonwealth  v.  Mulatto  Boh,  4  Dallas,  137.  Cliief  Justice 
McKean  presided  at  the  trial.  Judge  Smith  being  also  on  the  bench.  It  appeared  that,  a 
number  of  negroes  being  assembled,  about  ten  o'clock  at  night,  a  quarrel  arose  between 
the  prisoner  and  negro  David,  the  deceased.  For  a  while,  the  parties  fought  with  fists; 
and  the  prisoner  was  heard  to  exclaim  "  enough."  The  aflTray,  however,  became  general, 
and  continued  so  for  some  time.  When  it  was  over,  the  prisoner  went  to  a  neighbouring 
pile  of  wood,  and  furnished  himself  with  a  club.  He  was  advi.sed  not  to  use  it,  but  declared 
that  he  would,  and  entered  the  crowd  witii  it  in  his  hand.  After  remaining  there  about  ten 
minutes,  he  left  the  crowd  without  his  club;  and,  again  repairing  to  the  wood-pile,  took 
up  an  axe.  Being,  likewise,  dissuaded  from  returning  to  the  crowd  with  the  axe,  he 
said  "he  would  do  it;"  and  striking  the  instrument,  with  great  passion,  into  the  ground, 
swore  tiiat  he  would  "  split  down  any  fellows  that  were  saucy."  Accordingly,  he  mixed 
once  more  among  the  people;  a  struggle  was  immediately  heard  about  the  axe;  the  pri- 
soner then  struck  the  deceased  with  it  on  the  head;  the  deceased  fell;  and  as  he  was 
attempting  to  rise,  the  prisoner  gave  him  a  second  blow  on  the  head  with  the  sharp  edge, 
wliicli  penetrated  to  the  brain.  After  languishing  three  days,  death  was  the  consequence 
of  tliis  wound.  "  From  these  facts,"  said  the  Ciiief  Justice,  in  summing  up  the  evidence, 
"we  are  to  inquire  what  crime  the  prisoner  has  committed?  Murder,  in  the  first  degree, 
is  the  wilful,  deliberate,  and  premeditated  killing  of  another.  There  are  various  inferior 
kinds  of  homicide;  but,  on  the  present  indictment,  our  attention  is  confined  to  a  conside- 
ration of  the  highest  and  most  aggravated  description  of  crime.  Then,  let  us  ask,  did 
the  prisoner  wilfully  kill  the  deceased  ?  It  is  not  pretended  that  there  was  any  accident 
in  tlie  case;  and,  therefore,  the  act  must  have  been  wilful.  Was  the  killing  deliberate 
and  premeditated  ?  or  was  it  the  effect  of  sudden  passion,  produced  by  a  reasonable  pro- 
vocation? There  had  been  a  combat  with  fists;  but  this  was  over,  when  the  prisoner, 
without  any  new  provocation,  first  procured  a  club,  and  losing  that  weapon,  afterwards 
armed  himself  witii  an  axe.  It  cannot  surely  be  thought  that  the  original  combat  was  a 
sufficient  provocation  for  tiie  prisoner's  taking  the  life  of  his  antagonist.  An  assault  and 
battery  may,  indeed,  be  resisted  and  repelled  by  a  battery  more  violent;  but  the  life  of  a 
fellow  creature  must  not  be  taken,  unless  in  self  defence.  It  has  been  objected,  however, 
that  the  amendment  of  our  penal  code,  renders  premeditation  an  indispensable  ingredient 
to  constitute  murder  of  the  first  degree.  But  still,  it  must  be  allowed,  that  the  intention 
remains,  as  much  as  ever,  the  true  criterion  of  crimes,  in  law,  as  well  as  in  ethics;  and 
the  intention  of  the  party  can  only  be  collected  from  his  words  and  actions.  In  the  pre- 
sent case,  the  prisoner  declared,  that  he  would  'split  the  skull  of  any  fellows  who  should 
be  saucy;' and  he  actually  killed  the  deceased  in  the  way  which  he  had  menaced.  But, 
let  it  be  supposed,  that  a  man,  without  uttering  a  word,  should  strike  another  on  the 
head  with  an  axe,  it  must,  on  every  principle  by  which  we  can  judge  of  human  actions, 
be  deemed  a  premeditated  violence.  The  construction  which  is  now  given  to  the  act  of  • 
assembly,  on  this  point,  must  decide,  whether  the  law  shall  have  a  beneficial  or  a  pcrni- 
cious  operation.  Before  the  act  was  passed,  the  prisoner's  offence  would  clearly  have 
amounted  to  murder;  all  the  circumstances  implying  that  malice,  which  is  the  gist  of 
the  definition  of  the  crime  at  common  law:  and  if  he  escapes  with  impunity,  under  an 
intcrpretdtion  of  the  act  different  from  the  one  which  we  have  delivered,  a  case  can 
liardly  occur  to  warrant  a  conviction  for  murder  in  the  first  degree.  Tenderness  and 
mercy  are  amiable  qualities  of  the  mind;  but  if  they  are  exercised  and  indulged  beyond 
the  control  of  reason  and  the  limit  of  justice,  for  the  sake  of  individuals,  the  peace,  order 
and  happiness  of  society,  will  inevitably  be  impaired  and  endangered.  As  far  as  respects 
the  prisoner,  I  lament  the  tendency  of  these  observations  :  but  as  far  as  respects  the  pub. 
lie,  I  have  felt  it  a  sacred  duty  to  submit  them  to  your  consideration"  The  prisoner 
was  convicted  of  murder  in  the  first  degree,  Resp.  v.  Mulatto  Bob,  4  Dallas,  145.  See 
also,  Bennett  v.  Com.  8  Leiah,  781. 

In  a  case  in  Viririnia,  it  appeared  on  trial,  that  about  nine  o'clock  of  the  morning  on 
which  the  homicide  was  committed,  the  prisoner  and  the  deceased  were  seen  together  in 


454^^  HISTORIA  PLACITORUM  CORON.^. 

the  streets  of  Dumfries,  as  if  about  1o  engag^e  in  a  personal  conflict,  but  before  any  blow 
they  were  separated.  They  had  both  remained  in  town  from  tiiat  time  until  between 
one  and  two  o'clock  of  the  same  day,  but  how  employed  it  did  not  appear;  about  the 
latter  liour,  the  prisoner  was  seen  passings  a  tavern  on  the  street,  about  four  hundred  yards 
distant  from  the  spot  wiiere  the  murder  was  committed,  and.  on  being  accosted  by  the 
witness,  who  was  in  the  said  tavern,  he  said  he  had  been  much  injured  by  a  man,  whose 
name  he  knew  not,  who  had  kicked  him  in  the  face;  and  the  witness  saw  on  the  side. of 
the  prisoner's  nose  a  fresh  wound,  from  whicli  the  skin  had  been  abraded  to  the  superfi- 
cial extent  of  a  four-pence-half-penny,  or  nine-penny  piece.  The  prisoner  seemed  angry, 
and  said  he  was  determined  to  kill  tiie  man  who  had  thus  injured  him.  He  then  pro- 
ceeded on  about  thirty  yards  farther,  to  the  house  of  a  butcher,  and  calling  out  the  wife 
of  the  butcher,  who  was  then  at  dinner,  told  her  that  her  fatlier  (who  was  also  concerned 
with  her  husband  in  the  trade  of  a  butcher,)  had  sent  him  to  borrow  her  husband's 
butcher  knife,  whicli  she  immediately  delivered  to  him.  The  shop  where  this  took 
place  was  about  four  hundred  and  tliirty  yards  from  that  where  the  murder  was 
committed.  Upon  his  return  in  about  five  or  six  minutes  from  the  last  mentioned 
shop  with  the  knife  in  his  hand,  as  lie  was  repassing  the  tavern  before  mentioned, 
a  short  conversation  took  place  between  him  and  the  first  mentioned  witness,  in 
which  lie  reiterated  his  determination  to  kill  the  deceased,  and  was  warned  against  the 
act  by  the  witness.  He  proceeded  along  the  same  street  about  three  hundred  yards 
farther  and  stopped  at  the  ware-room  of  a  merchant,  where  he  asked  the  young  man 
who  was  in  attendance,  for  a  steel  to  sharpen  the  butcher's  knife,  declaring  his  intention 
to  kill  tlic  man  who  had  injured  him.  About  twenty  yards  from  the  ware-room  he 
turned  into  a  cross  street,  and  was  heard  denouncing  loud  threats  of  vengeance  against 
the  deceased,  and  declaring  his  intention  to  kill  liim.  At  the  further  corner  of  tlie  first 
square,  after  entering  the  cross  street,  the  prisoner  found  the  deceased  on  the  steps  of  a 
house,  with  his  head  hanging  on  his  breast,  apparently  asleep.  He  roused  the  deceased 
by  kicking  him,  and  as  the  deceased,  who  was  unarmed,  and  made  no  attempt  at  resist- 
ance, rose,  the  prisoner  said  he  had  come  to  kill  him,  and  as  tlie  deceased  answered  that 
"  he  reckoned  no  man  wanted  to  kill  him,"  the  prisoner  thrust  the  butcher's  knife  into  the 
breast  of  the  deceased.  Tlie  deceased  cried  out,  "  You  have  stabbed'  me,"  and  the 
prisoner  replied,  "damn  you,  if  you  don't  Imsh,  I  will  put  the  knife  into  you  again." 
The  deceased  walked  about  one  hundred  and  fifty  yards,  fell,  and  expired.  The 
prisoner  immediately  going  into  a  shop  where  he  had  a  bundle,  took  it  up,  and  walked 
quietly  out  of  town  to  a  house  about  two  miles  distant,  where  he  was  domesti- 
cated. To  the  owner  of  this  house  he  related  the  incidents,  and  said  he  had  given  the 
deceased  his  death  wound,  and  would  keep  out  of  the  way  some  days,  until  he  could 
ascertain  whether  or  not  he  was  dead.  The  prisoner  and  the  deceased  were  both  labor- 
ers. It  was  proved  that  the  deceased  was  a  turbulent  man,  and  reputed  a  hard  fighter. 
Nothing  was  said  of  the  character  of  the  prisoner.  It  did  not  appear  that  they  had  ever 
been  together  until  the  day  preceding  the  death,  when  they  were  at  a  cock-fight;  but 
whether  they  had  any  association  there  did  not  appear.  At  tl)e  time  of  the  murder  the 
prisoner  eitlier  did  not  know,  or  had  forgotten  the  name  of  tlie  deceased.  Under  the 
charge  of  the  court  a  verdict  of  murder  in  the  first  degree  was  rendered.  Burgess  v. 
Cominonivralth,  2  Virginia  cases,  484. 

In  another  case  under  the  Pennsylvarda  act,  it  appeared  that  the  prisoner  was  an  hon- 
est and  industrious  man,  but  addicted  to  intoxication,  and  when  in  that  state  was  quar- 
relsome. It  also  appeared  that  his  wife  occasionally  drank  too  much;  and  that  on  the 
day  of  the  fatal  occurrence  they  had  fallen  into  a  drunken  squabble.  During  the  quarrel 
the  wife  threw  several  stones  at  him,  one  of  which  struck  him  on  the  arm.  A  few 
moments  after  they  were  seen  struggling  together,  but  soon  after  the  wife  was  discovered 
fleeing  with  her  infant  in  her  arms,  the  prisoner  pursuing  her  with  an  axe  in  his  hand. 
When  he  came  within  reach  of  her  he  aimed  a  blow  at  her  which  fell  on  the  head  of  the 
child  as  it  lay  upon  the  wife's  shoulder,  and  caused  a  mortal  wound,  of  which  the  child 
died.  The  prisoner  soon  recovered  himself  and  showed  many  signs  of  repentance 
and  manifested  much  distress  at  the  manner  of  the  child's  death.  The  judge  who 
tried  the  case,  in  the  course  of  his  charge  to  the  jury,  said,  "We  now  come  to  this 
point: — what  was  the  intention  of  the  jirisoncr  at  the  bar,  when  he  killed  Daniel 
DougliCrty,  his  child  ?  for,  if  his  intent  was  to  kill  his  wife,  and  killing  iier  would  have 
been  murder  in  the  first  degree,  killing  his  child  will  also  be  murder  in  the  same  degree; 
as  nnich  as  if  he  had  prepared  a  cup  of  poison  for  his  wife  and  his  child  had  drank  it. 
You,  however,  are  in  this  case  to  judge  of  the  law  and  facts.  If  you  are  of  opinion  the 
injury  the  prisoner  received  from  ids  wife  throwing  stones  at  him,  and  hitting,  him,  kept 


HISTORIA  PLACITORUIM  CORONiE.  454' 

his  passion  boiling  until  he  g^ave  the  fatal  blow,  we  think  it  your  duty  to  find  him  g-nilty 
of  manslaughter.  But  if  you  are  of  the  opinion  his  passion  had  time  to  cool,  or  in  fact 
had  cooled,  after  the  assault  on  him  by  his  wifr,  it  is  your  duty  to  convict  him  of  murder 
in  tlie  first  degree."  The  verdict  was  manslaugiiter.  Cojiunonicealih  v.  Dougherty^ 
7  Smithes  Laics,  695. 

In  Tennessee,  a  verdict  of  murder  in  the  first  degree  was  sustained,  where  it 
appeared  that  the  deceased  was  killed  on  the  night  of  the  3d  of  October,  1841  ; 
that  the  prisoner  and  he  had  had  angry  difficulties  from  a  period  long  anterior  up  to 
the  time  of  the  commission  of  the  offence,  which  resulted  from  mutual  wrongs 
done  or  charged;  that  the  prisoner  accused  the  deceased  of  having  harboured  his 
wife,  to  his  great  personal  injury,  and  the  deceased  accused  him  of  having  fired 
his  house;  that  on  the  11th  day  of  September,  1841,  not  many  days  before  the 
murder,  the  prisoner  left  the  country  in  a  steamboat,  with  threats  in  his  mouth  of 
vengeance  for  his  injuries,  which  he  declared  he  would  have  before  he  left;  that 
one  week  before  the  murder,  he  returned  and  kept  himself  so  concealed  that  but  one 
person  saw  him  certainly,  others  saw  what  they  took  to  be  his  tracks,  and  one,  a  person 
in.  disguise,  whom  he  supposed  might  have  been  him;  that  on  the  night  the  deceased 
took  possession  of  the  building  which  had  formed  the  subject  of  tiie  controversy  between 
them,  he  was  killed,  cowardly  and  treacherously  ;  and  that  the  prisoner  immediately 
fled  the  country  again,  and  being  captured  at  Memphis,  denied  that  he  had  been  in  the 
County  of  Obion  since  his  first  departure  on  the  11th  of  September,  but  admitted  that  he 
had  returned  up  the  river  to  within  fitly  miles  of  the  residence  of  the  deceased.  Stone 
\.  The  State,  4  Humphrey,  34. 

Murder  in  the  second  degree  includes  all  cases  of  deliberate  homicide  where  the  inten- 
tion is  not  to  take  life,  of  which,  homicide  by  a  workman  throwing  timber  from  a  house 
into  the  street  of  a  populous  city,  without  warning,  or  pf  a  person  shooting  at  a  fowl, 
animo  furandi.  and  killing  a  man,  are  instances  frequently  given.  Whiteford  v.  Coin. 
6  Randolph,  7"21;  There  may,  also,  be  cases  where  death  ensues  during  a  riotous  affray, 
under  circumstances  which  would  constitute  murder  at  common  law,  but  which,  in 
consequence  of  the  want  of  a  specific  intent  to  take  life  being  shown,  amount  but  to 
murder  in  the  second  degree.  Thus,  where  it  appeared  that  the  deceased,  during  the 
riots  in  Philadelphia  in  1844,  was  killed  while  a  desultory  fire  was  going  on,  the  object 
of  which  was  to  prevent  either  of  two  contending  parties  from  taking  possession  of  a 
position  which  both  of  them  were  desirous  of  obtaining,  it  was  said  that  a  homicide, 
oonmiitted  under  such  circumstances,  though  murder  at  common  law,  deliberation 
being  shown,  might  not  be  murder  in  the  first  degree,  and  a  verdict  of  murder  in 
the  second  degree  was  consequently  rendered.  King,  Pres't,  who  tried  the  case,  how- 
ever, charged  the  jury,  "that  if  one  or  more  of  the  parties  sO  engaged  in  an  unlawful 
combat,  deliberately  fire  at  and  kill  an  innocent  tiiird  person,  taking  no  part  in  tiie  con- 
flict, liaving  no  just  reason  to  regard  him  as  one  of  the  belligerents,  such  killing  would 
be  murder  of  the  first  degree.  It  would  present  the  case  of  a  wilful,  deliberate  and  pre- 
meditated killing,  perpetrated  with  an  instrument  likely  to  take  life,  rendering  the  actual 
perpetrators  guilty  of  the  highest  grade  of  crime  known  to  our  criminal  code.  If  the 
testimony,  in  your  judgment,"  he  said,  "  brings  clearly  home  to  the  defendant  such  a 
charge,  he  should  be  convicted.  If,  however,  the  commonwealth  has  not  fully  satisfied 
your  minds  in  the  affirmative  of  this  position,  or  if  the  proofs  adduced  by  the  defen- 
dant  have  rebutted  this  allegation,  or  thrown  a  fair  doubt  upon  its  certainty,  you  ought 
not  and  cannot  justly  convict  him  of  that  part  of  the  charge  involving  capital  punish- 
ment."    Com.  V.  Hare,  4  Penns.  Laic  Jour.  401. 

If  a  pregnant  woman  be  killed  in  an  attempt  to  produce  abortion  in  her,  and  it 
appears  that  the  design  of  the  operator  was  not  to  take  the  life  of  the  mother,  it  is  mur- 
der  in  the  second  degree.     Ex  parte  Chauncey,  2  Ashnead,  227. 

Wherever  the  deliberate  intention  is  to  take  life,  and  death  ensues,  it  is  murder  in  the 
first  degree  ;  wherever  it  is  to  do  bodily  harm,  or  other  mischief,  and  death  ensues,  it  is 
murder  in  the  second  degree;  while  the  common  law  definition  of  manslaughter  remains 
unaltered.  But  however  clear  may  be  the  distinction  between  the  two  degrees,  juries 
not  untrequcntly  make  use  of  murder  in  the  second  degree  as  a  compromise,  when  they 
believe  murder  to  have  been  committed,  but  are  unwilling,  in  consequence  of  circum- 
stances of  mitigation,  to  expose  the  defendant  to  its  full  penalties.  In  such  cases  courts 
are  not  disposed  to  disturb  verdicts,  but  permit  them  to  stand,  though  technically  incor- 
rect. Thus,  where  S.  having  conceived  and  declared  a  design  to  kill  P.,  the  parties 
met  afterwards  in  front  of  S.'s  own  house,  and  a  quarrel  ensued,  in  which  S.  gave  the 
first  offence;   Pi  proposed  a  fight;  upon  which  S.  retired  for  a  very  brief  ti^ue  into 


454^  HISTORIA  PLACITORUM  CORONA. 

his  house,  armed  himself  witli  a  loaded  pistol,  which  he  concealed  in  his  pocket, 
and  instantly  returned  so  armed  to  the  scene  of  quarrel;  then  P.  threw  a  brickbat 
at  S,  which  did  not  hit  him,  but  falling  short  of  him,  broke,  and  a  small  fragment 
struck  S.'s  child,  standing  within  his  own  door,  who  cried  out,  and  his  hearing  his  child 
cry  out,  but  without  looking  to  see  whether  he  was  hurt  or  not,  exclaimed,  '*  he  has 
killed  my  cliild  and  I  will  kill  him,"  advanced  towards  P.  deliberately  aimed  and  fired 
the  pistol  at  him,  then  retreating  with  his  face  towards  S.,  and  the  shot  took  effect  and 
killed  P.  A  verdict  of  murder  in  tiie  second  degree  being  rendered,  the  court  refused  to 
set  it  aside.     Slaughters  v.  Com,  11  Leigh,  682. 

There  are,  however,  certain  features  which,  in  cases  of  deliberate  homicide,  draw 
forth,  generally  from  the  courts  instructions  to  the  jury  that  by  them  a  deliberate  intent 
to  take  life  is  shown.  Where  a  man  makes  use  of  a  weapon  likely  to  take  life;  where 
he  declares  his  intentions  to  be  deadly;  where  he  makes  preparations  for  the  concealing 
of  the  body;  where,  before  the  death,  he  lays  a  train  of  circumstances  which  may  be 
calculated  to  break  the  surprise,  or  bafHe  the  curiosity  which  would  probably  be  occa- 
sioned by  it;  wJiere,  in  any  way,  evidence  arises  which  shows  a  harboured  design  against 
the  life  of  another; — such  evidence  goes  a  great  way  to  fix  the  grade  of  homicide  at 
murder  in  tlie  first  degree;  as  in  Resp.  v.  Mulatto  Boh, quoted  ante,  454.^"  Where  a  man 
loaded  a  pistol,  took  aim  at,  and  shot  another,  it  was  held  murder  in  the  first  degree.  Com. 
V.  Smith,  7  Smith's  Laws,  6'J6.  If  one  man  shoot  another  through  the  head  with  a  musket 
or  pistol  ball, — if  he  stab  him  in  a  vital  part  with  a  sword  or  dagger, — if  he  cleave  his 
skull  with  an  axe  or  the  like, — it  is  almost  impossible  for  a  reflecting  and  intelligent  mind 
to  come  to  any  other  conclusion  than  that  the  perpetrator  of  such  acts  of  deadly  violence 
intended  to  kill.  Com.  v.  Daily,  4  Penn.  Law  Journal,  157.  Where  the  defendant  delib- 
erately procured  a  butcher's  knife,  and  sharpened  it  for  the  avowed  purpose  of  killing  the 
deceased;  Com.  v.  Burgess,  2  Va.  Cases,  484;  where  lie  concealed  a  dirk  in  his  breast, 
stating,  shortly  before  the  attack,  that  he  knew  where  the  seat  of  life  was;  BennetVs  case, 
11  Zi(io-/i,  749;  where  he  thrust  a  hand-spike  deeply  into  the  forehead  of  the  deceased; 
Swan  v.  State,  4  Humphrey,  139;  the  presumption  was  held  to  exist,  that  the  killing  was 
wilful.  See  U.  S.\.  Cornell,  2  Mason,  94;  Woodside  v.  State,  2  Howard,  656;  State  v, 
Tuohey,2  Rice''s  Digest,  104;  Com.  v.  Webb,  6  Randolph, 121.  But  it  is  not  necessary,  to 
warrant  a  conviction  of  murder  in  tlie  first  degree,  that  the  instrument  should  be  such  as 
Would  necessarily  produce  death.  Thus,  where  the  weapon  of  death  was  a  club  not  so 
thick  as  an  axe-handle,  the  jury,  under  the  charge  of  the  court,  rendered  a  verdict  of 
murder  in  the  first  degree,  it  appearing  that  the  blow  was  induced  by  a  deliberate  inten- 
tion to  take  life.  Com.  v.  Murray,  2  Ashmead,  57.  The  same  presumption  of  intention  is 
drawn  with  still  greater  strength  from  the  declared  purpose  of  the  defendant.  Thus, 
where  the  prisoner,  a  negro,  said  he  intended  "  to  lay  for  the  deceased,  if  he  froze,  the 
next  Saturday  night,"  and  where  the  homicide  took  place  that  night;  Jim  v.  State, 
5  Humphrey,  174;  where  it  was  said,  "I  am  determined  to  kill  the  man  who  injured 
me;"  Com.  v.  Burgess,  2  Va.  Cases,  484;  where  the  prisoner  had  declared,  the  day 
before  the  murder,  that  he  would  certainly  shoot  the  deceased;  Com.  v.  Smith,  7  Smit.h''s 
Laws,  697;  where,  in  another  case,  the  language  was,  "  I  will  split  down  any  fellow  that 
is  saucy;"  Com.  v.  Mulatto  Bob,  4  Dallas,  146;  where  the  prisoner  rushed  rapidly  to  the 
deceased,  and  aimed  at  a  vital  part;  Com.  v.  O'Hara,  7  Smith's  Laws,  694;  where  a 
grave  had  been  prepared  a  short  time  before  the  homicide,  though  the  deceased  was  not 
ultimately  placed  in  it,  the  whole  plan  of  action  being  changed;  Com.  v.  Zephon,  Oyer  Sf 
Term.  Phila.  July,  1844,  MSS.  Wharton's  Am.  C.  L.  289;  in  each  of  these  cases  it  was 
lield  murder  in  the  first  degree.  It  must  be  noticed  that  premeditation,  in  the  eye  of 
the  law,  has  no  defined  limits;  and  if  a  design  be  but  the  conception  of  a  moment  it 
is  as  deliberate,  so  fiir  as  judicial  examination  is  concerned,  as  if  it  were  the  plan  of 
years.  If  the  party  killing  had  time  to  think,  and  did  intend  to  kill,  for  a  minute,  as 
well  as  an  hour  or  a  day,  it  is  a  deliberate,  wilful,  and  premeditated^  killing,  constituting 
murder   in  the  first  degree.     Com.  v.  Smith,  7  Smith's  Laws,  697. 

In  an  early  ciise  in  Tennessee,  it  is  true,  it  was  said  that  a  previous  intent  to  take  life 
must  be  positively  shown;  Mitchell  v.  Slate,  5  Yerger,  340.;  but  such  is  not  the  opinion 
which  now  obtains  even  in  that  state.  State  v.  Anderson,  2  Tenness.  6;  Dale  v.  State, 
10  Yerger,  551.  If  the  accused,  as  he  ajiproached  the  deceased,  and  first  came  within 
view  of  him  at  a  slmrt  distance,  then  formed  the  design  to  kill,  and  walked  up  with  a 
quick  pace,  and  killed  him  without  any  |)rovoeation  then,  or  recently  received,  it  is  mur- 
der in  the  first  degree.  Whiteford  v.  ('om.  6  Randolph,  721;  Anthony  v.  State,  1  Meigs, 
265;  Resp.  v.  Mulatto  Boh, 'I  Vullus,  1  16.  "  It  is  true,"  as  was  said  in  a  late  case,  "the 
act  says  the  killing  must  be  wilful,  deliberate,  and  premeditated.     But  every  intentional 


HISTORIA  PLACITORUM  CORONA.  454** 

act  is,  of  course,  a  wilful  one,  and  deliberation  and  premeditation  simply  mean  that  the 
act  was  done  with  reflection,  was  conceived  beforehand.  No  specific  length  of  time  is 
required  for  such  deliberation.  It  would  be  a  most  difficult  task  for  human  wit  to  furnish 
any  safe  standard  in  this  particular.  Every  case  must  rest  on  its  own  circumstances. 
The  law,  reason,  and  common  sense  unite  in  declaring'  that  an  apparently  instantaneous 
act  may  be  accompanied  with  such  circumstances  as  to  leave  no  doubt  of  its  being'  the 
result  of  predetermination."  Com.  v.  Daley,  4  Penn.  Law  Journal,  156;  Davis  v.  State, 
S  Humphrey,  439. 

It  is  not  necessary,  nor  is  it  the  practice  to  desigriate  the  grade  of  homicide  in  the  in- 
dictment, nor  that  tlie  killing  should  be  charged  to  be  wilful,  deliberate,  and  premedi- 
tated. Com.  V.  VV'tc/rs,  2  Va.  Cases,  387;  Mitchell  v.  Slate,  .5  Yerger,  340 ;  Com.  v.  Flan. 
nagan,  8  Watts  «.5"  ^^rg.  415 ;  Com.  v.  White,  6  Binney,  183 ;  Com.  v.  Miller,  1  Va.  Cases, 
3lO;  Com.  v.  -Gilbert,  2  Va.  Cases,  70.  So  if  murder  be  committed  in  the  perpetration 
of  arson,  rape,  burglary,  or  robbery,  it  is  not  necessary  that  it  should  be  so  set  out  in  the 
indictment.  Com.  v.  Flannagan,  8  Watts  Sf  Serg.  415.  In  Pennsylvania  it  is  not  neces- 
sary that  the  indictment  should  conclude,  contrary  to  the  form  of  the  act  of  assembjj/', 
&,c.  Com.  V.  White,  6  Binney,  183.  On  an  indictment  for  murder,  perpetrated  by  means 
of  poison,  a  verdict  finding  the  prisoner  "guilty  in  manner  and  form  as  stated  in  the  in- 
dictment," is  as  correct  as  of  murder  in  the  first  degree,  and  sufficient  to  authorize  the 
judgment  of  death.   Com.  v.  Earl,  1  Wharton,  525. 

In  Maine,  the  same  line  of  distinction  seems  to  have  been  taken  as  appears  in  the  fore- 
going cases.  In  the  case  of  The  Commonwealth  v.  Vurney,  Shepley,  J.,  charged  the  jury 
that  they  could  find  either  of  four  verdicts,  not  guilty,  guilty  of  manslaughter,  guilty  of 
murder  in  the  second  degree,  or  murder  in  the  first  degree.  "  If  it  was  proved  that  the 
prisoner  killed  Otis,  the  burden  was  upon  him  to  reduce  the  offence  from  murder.  The 
distinction  between  murder  in  the  first  and  second  degree  was,  that  it  must  be  proved  that 
the  deed  was  done  with  express  malice,  and  with  an  intent  to  take  life.  Murder  in  the 
second  degree  might  be  found  where  there  was  no  intention  to  take  life,  but  it  was  taken 
not  upon  a  mutual  combat  or  sudden  provocation,  but  in  an  assault  made  in  consequence 
of  preconceived  anger  or  resentment,  although  not  amounting  to  an  intention  to  kill. 
That,  in  this  case,  to  reduce  the  offence  to  manslaughter,  the  prisoner  must  satisfy  them, 
or  they  must  be  satisfied  from  the  facts  proved  by  the  government,  that  the  assault  was 
not  the  result  of  preconceived  anger,  but  upon  some  new  and  sudden  provocation  given 
at  the  time,  or  in  the  mutual  combat.  If  the  prisoner  went  there  for  the  purpose  of  flog- 
ging the  deceased,  and  did  make  the  assault  accordingly,  and  there  was  no  sutiicient  pro- 
vocation to  excite  him  anew,  and  no  mutual  combat,  then,  although  he  did  not  intend  to 
kill,  he  would  be  guilty  of  murder  in  the  second  degree."  Com.\.  Varney,  8  Boston  Law, 
R.5i2.    Vide  Wh.  Am.  C.  L.  287-290,  where  the  above  cases  are  collected. 

The  distinction  taken,  in  Ohio,  between  murder  in  the  first  and  murder  in  the 
second  degree,  is  different  from  that  which  obtains  in  other  States.  Thus  it  was 
said,  in  a  charge  by  Judge  Wrisht ;  "To  convict  of  mudder  in  the  first  degree,  you 
must,  in  addition  to  the  points  I  have  mentioned,  be  satisfied,  1.  That  the  prisoner 
perpetrated  the  act  purposely.  2.  That  he  did  it  with  intent  to  kill.  3.  That  he  did 
it  of  deliberate  and  premeditated  malice.  To  constitute  deliberate  and  premeditated 
malice,  the  intention  to  do  the  injury  must  have  been  deliberated  upon,  and  the 
design  to  do  it  formed,  before  the  act  was  done,  though  it  is  not  required  that  either 
should  have  been  for  any  considerable  time  before.  This  supposes  the  party,  by  reflec- 
tion, understood  what  he  was  about  to  do,  and  intended  to  do  it  in  order  to  do  harm.  If 
these  things  are  all  proved;  and  you  find  the  defendant  guilty  of  murder  in  the  first 
degree,  you  need  examine- no  further.  If  not  proven  to  your  satisfaction,  you  will  then 
examine  further.  To  convict  of  murder  in  the  second  degree,  you  must  be  satisfied  of 
the  general  facts  common  to  all  the  offences,  which  I  have  stated,  and  also  of  the  follow- 
ing: I.  That  the  prisoner  perpetrated  the  act  purposely  and  maliciously  ;  2,  with  intent 
to  kill;  and  3,  without  deliberation  or  premeditation.  If  you  are  not  satisfied  of  the  con- 
currence  of  these  facts,  you  should  acquit  him  of  murder  in  the  second  degree,  and  will 
be  under  the  necessity  of  examining  further."  State  v.  Turner,  Wright,  2Q;  State  v. 
Town,  Wright,  75 ;  State  v.  Gardiner,  Wright,  392. 

To  constitute  the  crime  of  murder  in  the  first  degree,  when  the  purpose  to  maliciously 
kill,  with  premeditation  and  deliberation,  is  found,  the  leno^th  of  time  between  the  design 
so  formed  and  its  execution,  is  immaterial.     Shoemoher  v.  State,  12  Stanton,  43. 

If  the  jury  do  not  in  a  murder  case  specify  in  their  verdict  whether  they  find  the  pri. 


454^"  HISTORIA  PLACITORUM  CORONA. 

soner  guilty  of  murder  in  the  first  or  second  degree,  or  of  manslaughter,  the  court  will 
refuse  to  pass  sentence,  and  award  a  new  trial,  even  if  not  asked  for.  State  v.  Town, 
Wright,  75. 

In  Kentucky,  a  statute  was  passed  in  1801,  2  Morehead  S^  Brown,  1267,  by  which  a 
similar  distinction  was  supposed  to  have  been  created,  but  at  the  next  session  of  the 
legislature  it  was  enacted  that  the  former  statute  should  not  be  so  construed  as  "  in  any 
way  to  alter  or  cliange  the  idea  of  murder,  as  it  stands  at  common  law."  Ibid.  1281. 
See  Wharton's  Am.  Cr.  L. p.  287-292,  where  most  of  the  statutes  and  cases  are  col- 
lected. 


[  455  ]  CHAPTER  XXXVII.j 

CONCERNING  MURDER  BY  MALICE  IMPLIED  PRESUMPTIVE,  OR  MALICE 

IN  LAW. 

I  HAVE  before  distinguished  malice  implied  into  these  kinds  :  1.  When 
the  homicide  is  voluntarily  committed  without  provocation.  2.  When 
done  upon  an  officer  or  minister  of  justice.  3.  When  done  by  a  per- 
son, that  intends  a  theft  or  burglary,  &c. 

1.  Therefore  touching  the  former  of  these. 

When  one  voluntarily  kills  another  without  any  provocation,  it  is 
murder,  for  the  law  presumes  it  to  be  malicious,  and  that  he  is  hoslis 
humaiii  genet-is  ;[1]  it  remains  therefore  to  be  inquired,  what  is  such 


[1]  The  killing  being  proved,  the  inference  is,  that  it  was  malicious,  and  that  the 
party  is  guilty  of  murder,  and  it  is  for  the  accused  to  show  the  circumstances  which 
justify,  extenuate,  or  excuse  the  act;  and  this  is  accordant  with  the  ordinary  rule  of 
evidence,  that  the  party  alleging  the  afHrmative  must  prove  it — a  rule  which  usually  ap- 
plies  in  criminal  as  in  civil  cases.  Kclyns;,  27,  1  East,  P.  C.  224,  340;  4  Bl.  Com.  20i; 
Roscoe  Cr.  Ev.  (2tZ  ed.)  20;  The  King  v.^Onelij,  2  Ld.  Ray.  149.3,  and  2  Strange,  773; 
Mitchell  V.  The  State,  5  Yergcr,  340;  Commonwealth  v.  Knapp,  10  PicA,  484  ;  Kespub. 
lica  V.  Mulatto  Bob,  4  Dallas,  146;  Mackalley's  case,  9  Co.  67  h;  Mavgridge^s  case, 
Kelyn<r,  HO;  Hollowaye^s  case.  Palm.  545;  Cro.  Car.  131;  Bac.  Ab.  Murder,  C.  2', 
2  McNally,  546;  2  Starkie  Ev.  948;  Archbold,  Cr.  Pi.  212,  213;  3  Chitty.,  Cr, 
Z.  (4  Am.  Ed.)  727;  1  Gabbitt,  Cr.  L.  455 :  Queen  v.  Kirkham,  8  Car.  ^  P.  116- 
117;  King  v.  Greenacre,  8  Car.  S(  P.  35 ;  People  v.  McLend,  1  Hill,  436 ;  State  v,  ZeU 
lers,  2  Halstead,  243;  Pennsylvania  v.  Honeyman,  Bell,  McFall  Sf  Lewis,  Addison,  148, 
161,  250,  282;  Commonwealth  v.  York,  9  Metcalf,  93. 

The  killing,  to  be  murder,  must  be  committed  with  malice  aforethought;  but  wherever 
it  appears  that  a  man  killed  another,  it  shall  be  intended,  prima  facie,  that  he  did  it 
maliciously,  unless  he  can  make  out  the  contrary,  by  showing  that  he  did  it  on  a  sud- 
den  provocation,  or  the  like.    1  Hawk.c.  31,  s.  32;  li.  v.  Greenacre,  8  C  tSf  P.  35. 

And  in  general,  any  formed  design  of  doing  mischief  may  be  called  malice;  and, 
therefore,  not  such  killing  only  as  proceeds  from  premeditated  hatred  or  revenge  against 
the  person  killed,  but  also  in  many  otlicr  cases,  such  as  is  accompanied  with  those  cir- 
cumstances that  show  the  heart  to  be  perversely  wicked,  is  judged  to  be  of  malice  pre- 
pense, and  consequently,  murder.     2  Hawk.  r.  31,  s.  18;  2.  Str.lfjQ, 

For  when  the  law  n^ikcs  use  of  the  term  malice  aforethought,  as  descriptive  of  the 
crime  of  murder,  it  is  not  to  be  understood  in  that  narrow  restrained  sense  to  whieh 
the  modern  use  of  the  word  malice  is  apt  to  lead  one,  a  principle  of  malevolence  to  par- 


HISTORIA  PLACITORUM  CORONA.  455 

a  provocation,  as  will  take  off  the  presumption  of  malice  in  him,  that 
kills  another. 

He  that  wilfully  gives  poison  to  another,  that  hath  provoked  him 
or  not,  is  guilty  of  wilful  murder,  the  reason  is,  because  it  is  an  act 
of  deliberation  odious  in  law,  and  presumes  malice. [2] 

If  .,^.  comes  to  B.  and  demands  a  debt  of  him,  or  comes  to  serve 
him  with  a  Subpcena  ad  respondenduin  or  ad  lestijicatidum,  and 
B.  thereupon  kills  ./?.  this  is  murder,  because  it  is  no  provocation. 

IVatts  came  along  by  the  shop  of  Brains,  and  distorted  his  mouth, 
and  smiled  at  him.  Brains  kills  him,  it  is  murder,  for  it  was  no  such 


ticulars ;  for  the  law  by  the  term  malice  (malitia)  in  this  instance  meaneth,  that  the 
fact  hath  been  attended  with  such  circumstances  as  are  the  ordinary  symptoms  of  a 
wicked  heart,  regardless  of  social  duty,  and  bent  upon  mischief     Fost.  255,  256,  257. 

Also,  wherever  a  person  in  cool  blood,  by  way  of  revenge,  beats  another  in  such  a 
manner  that  he  afterwards  dies  thereof,  he  is  guilty  of  murder,  however  unwilling  he 
might  have  been  to  have  gone  so  far.    1  Hawk.  c.'S\,  s. 38. 

So  where  a  master  or  other  person  in  authority,  in  for o  domestico,  exceeds  the  bounds 
of  moderation  in  administering  correction,  and  death  ensues,  it  will  be  manslaughter  or 
murder  according  to  the  circumstances. 

A  blacksmith  struck  his  servant  with  a  bar  of  iron  by  way  of  correction  for  im- 
proper behaviour,  by  which  he  was  killed ;  held,  murder.  A  woman  kicked  and 
stamped  on  the  belly  of  her  child;  ruled  the  same.  Grey^s  case,  Kel.  64,  65;  1  East, 
F.  C.  261.  Foster  262. 

If  a  man  resolve  to  kill  the  next  person  he  meets,  and  do  kill  him,  it  is  murder, 
altliough  he  knew  him  not,  for  it  is  universal  malice.  4  Bl.  Com.  400. 

Where  the  act  is  committed  deliberately,  and  is  likely  to  be  attended  with  dangerous 
consequences,  the  malice  requisite  to  murder  will  be  presumed ;  for  the  law  infers  that 
the  natural  or  probable  effects  of  any  act  deliberately  done,  were  intended  by  its  actor. 
Commonwealth  v.  Drew,  4  Mass.  391. 

Forcing  a  person  to  do  an  act  which  is  likely  to  produce  his  death,  and  which  does 
produce  it,  is  murder.    Rex  v.  Evans,  1  Russ.  C.  ».Sf  M.  426. 

And  threats  may  constitute  such  force.     lb. 

He  who  kills  another  upon  his  desire  or  command,  is,  in  the  judgment  of  the  law,  as 
much  a  murderer  as  if  he  had  done  it  merely  of  his  own  head.  Rex  v.  Sawyer,  1  Russ. 
C.  S(  M.  424. 

If  a  man  encourages  another  to  murder  himself,  and  is  present  abetting  him  wliile 
he  does  so,  such  person  is  guilty  of  murder  as  principal.  If  two  encourage  each 
other  to  murder  themselves  together,  and  one  does  so,  but  the  other  fails  in  the  attempt 
upon  himself,  he  is  a  principal  in  the  murder  of  the  other.  But  if  it  be  uncertain 
whether  the  deceased  really  killed  himself,  or  whether  he  came  to  his  death  by  accident 
before  the  moment  when  he  meant  to  destroy  himself,  it  will  not  be  murder  in  either. 
Rex  V.   Dyson,  R.  Sf  R.  C.  C.  523. 

Where  a  wound  is  wilfully,  and  without  justifiable  cause  inflicted,  and  ultimately 
becomes  the  cause  of  death,  the  party  who  inflicted  it  is  guilty  of  murder,  though  life 
might  have  been  preserved  if  the  deceased  had  not  refused  to  submit  to  a  surgical  opera- 
tion.    Reg.  v.  Holland,  2  M.  Sf  Rob.  351. 

See  also  Commonwealth  v.  Drew,  4  JV/flss.  391;  Respublica  v.  Bob,  4  Dallas,  14fi; 
Pennsylvania  v.  Honeyman,  Addison,  148;  Pennsylvania  v.  McFall,  Addison,  252; 
Pennsi/lvania  v.  Lewis,  Addison,  182;  Commonwealth  v.  York,!  Boston  Late  Reporter, 
510;  State  V.  Zellers,2  Halstcd, 220;  State  w. Merrill, 2  Dev.26d;  The  People  v. Mc Lead, 
1  Hill, '317;  State  V.  Town,  Wright,  15;  State  v.  Turner,  Ibid.  20;  Woodsides  v.  The 
St^te,  2  Howard  Miss.  Rep.  656  ;  Dexter  v.  Spear,  4  Mason,  115.  ante  ch.  36  notes. 
\ 

[2]  1  East,  P.  C.  225;  4  Bl.  Com.  200.  (See  ante  Chapter  XXXIII.  note.)  By  Sta. 
tute,  1  Vict.  c.  85,  s.  2,  administering  poison  with  intent  to  murder,  though  no  death 
should  ensue,  is  made  a  capital  offence. 


455  HISTORIA  PLACITORUM  CORONA. 

provocation  as  would  abate  the  presumption  of  malice  in  the  party 
killing.   M.  42  ^'  43  Ellz.  B.  R.  Brain's  case.(«)[3] 

If./?,  be  passing  the  street,  and  B.  meeting  him,  (there  being  con- 
venient distance  between  ^.  and  the  wall,)  takes  the  wall  of  ..^.  and 
thereupon  ,^.  kills  him,  this  is  murder;  but  if  B.  had  justled  ./?.  this 
justling  had  been  a  provocation,  and  would  have  made  it 
[]456  ]  manslaughter,  and  so  it  would  be,  if  .^.  riding  on  the  road, 
B.  had  whipt  the  horse  of  .^.  out  of  the  track,  and  then  ^. 
had  alighted,  and  killed  B.  it  had  been  manslaughter.  17  Car.  1.  Z«- 
nure's  case. 

In  the  case  of  the  lord  Morley,  IS  Car.  2.(b)  all  the  judges  met, 
and  it  was  agreed  by  all  judges  except  one,  that  if ./?.  gives  slighting 
words  to  B.  and  thereupon  B.  immediately  kills  him,  this  is  murder 
in  B.  and  that  such  words  are  not  in  law  such  a  provocation,  as  will 
extenuate  the  offense  into  manslaughter,  and  the  statute  of  1  Jac. 
cap.  8.  of  stabbing  in  such  a  case  was  but  provisional,  because  the 
juries  were  apt  upon  any  verbal  provocation  to  find  the  fact  to  be 
manslaughter;  but  it  was  there  held,  that  words  of  menace  of  bodily 
harm  would  come  within  the  reason  of  such  a  provocation,  as  would 
make  the  offense  to  be  but  manslaughter. 

And  many,  who  were  of  opinion,  that  bare  words  of  slighting, 
disdain,  or  contumely,  would  not  of  themselves  make  such  a  provo- 
cation, as  to  lessen  the  crime  into  manslaughter,  yet  were  of  this 
opinion,  that  if  Jl.  gives  indecent  language  to  B.  and  B.  thereupon 
strikes  ,d.  but  not  mortally,  and  then  ^.  strikes  ^.  again,  and  then  B. 
kills  td.  that  this  is  but  manslaughter,  for  the  second  stroke  made  a 
new  provocation,  and  so  it  was  but  a  sudden  falling  out,  and  tho  B, 
gave  the  first  stroke,  and  after  a  blow  received  t'i:om^.,B.  gives  him 
a  mortal  stroke,  this  is  but  manslaughter  according  to  the  proverb 
the  second  blow  makes  the  affray ;  and  this  was  the  opinion  of  my-^ 
self  and  some  others.[4] 

There  was  a  special  verdict  found  at  Neivgate,  viz.  A.  sitting 
drinking  in  an  alehouse,  B.  a  woman  called  him  a  son  of  a  ivhore^ 
J2.  takes  up  a  broomstaff,  and  at  a  distance  throws  it  at  her,  which 
hitting  her  upon  the  head  kild  her,  whether  this  was  murder  or  man- 
slaughter was  the  question  in  P.  26  Car.  2.  it  was  propounded  to  all 
the  judges  at  Se7jeants-Inn,  two  questions  were  named,  1.  Whether 
bare  words,  or  words  of  this  nature,  would  amount  to  such  a  provo- 
cation, as  would  extenuate  the  fact  into  manslaughter ?(c) 

2.  Admitting  it  would  not  in  case  there  had  been  a  striking 

[  457  3  with  such  an  instrument,  as  necessarily  would  have  caused 

death,  as  stabbing  with  a  sword,  or  pistolling,  yet  whether 

(a)  Cro.  Eliz.  778.  Kel.  131.  (6)  Kelyng,  55.  (c)  See  Kcl.  131. 

[3]  Slate  V.  Toohey,  2  Rice's  Dip;.  104.  U.  States  v.  Cornell,  2  Mason,  91.  Woodsides  v. 
Stnte,  2  Howard,  Miss.  R.  656.  Davies  v.  The  State,  2  Humphrey,  437.  Coffee  v.  The 
Slate,  3  Yertrer,  288. 

[4]  1  Russ.  on  C.  587.  Foster,  205.  JR.  v.  Maugridge,  Kel.  128.  R.  v.  Snow,  1  Leach, 
151.  Reg.  V.  Smith,  8  C.  Sf.  F.  IGO. 


HISTORIA  PLACITORUM  CORON.^.  457 

this  striking,  that  was  so  improbable  to  cause  death,  will  not  alter 
the  case;  the  judges  were  not  unanimous  in  it;  and  in  respect,  that  the 
consequence  of  a  resolution  on  either  side  was  great,  it  was  advised 
the  king  should  be  moved  to  pardon  him;  which  was  accordingly- 
done. [5] 

Ji.  and  B.  are  at  some  difference,  A.  bids  B.  take  a  pin  out  of  the 
sleeve  oi  vi.  intending  thereby  to  take  an  occasion  to  strike  or  wound 
B.  which  B.  doth  accordingly,  and  then  A.  strikes  B.  whereof  he 
died;  this  was  ruled  murder,  1.  Because  it  was  no  provocation,  when 
he  did  it  by  the  consent  oi  Ji.  2.  Because  it  appeared  to  be  a  ma- 
licious and  deliberate  artifice  thereby  to  take  occasion  to  kill  B. 

If  there  be  chiding  between  husband  and  wife,  and  the  husband 
strikes  his  wife  thereupon  with  a  pestle,  that  she  dies  presently,  it  is 
murder,  and  the  chiding  will  not  be  a  provocation  to  extenuate  it  to 
manslaughter.  43  Eliz.  Crompt.fol.  120.  a.(c^)[6] 

(d)  See  also  Kd.  64. 

[5]  HdzeVs  case,  1  Leach,  368.  Twiner^s  case,  ]  Ld.  Raymond,  143.  Wigg''s  case, 
1  Leach,  378.     R.  v.  Howlett,  7  C.  Sj  P.  274.     MacklMs  case,  7  Lew.  225. 

[6]  An  unwarrantable  imprisonment  of  a  man's  person  has  been  liolden  sufficient 
provocation  to  make  a  killing,  even  with  a  sword,  manslaughter  only.  R.  v.  Buckner, 
Sty.  467.  Tlierefore  where  a  constable  took  a  man  without  warrant,  upon  a  charge 
which  gave  him  no  authority  to  do  so,  and  the  prisoner  ran  away,  and  J.  S.,  who  was 
with  the  constable  all  the  time,  ran  after  the  prisoner,  who,  to  prevent  his  being  retaken, 
killed  J.  S.;  it  was  holden  to  be  manslaughter  only,  although,  whilst  under  the  charge 
of  the  constable,  the  prisoner  struck  the  man  who  gave  the  charge;  because  a  blow 
under  the  provocation  of  the  illegal  arrest  would  not  justify  the  constable  in  detaining 
him,  unless  the  blow  were  likely  to  be  followed  by  dangerous  consequences,  and  formed 
a  new  and  distinct  ground  of  detainer.  R.  v.  Curvan,  R.  &•  M.  132 ;  see  R.  v.  Thomp- 
son, R.  Sf  M.  88. 

So  where  a  creditor  placed  a  man  at  the  chamber  door  of  his  debtor,  with  a  sword 
drawn  to  prevent  him  from  escaping,  while  a  bailiff  was  sent  for  to  arrest  him,  and 
the  debtor  stabbed  the  creditor,  this  was  held  manslaughter.  R.  v.  Withers,  1  East, 
P.  C.  233. 

There  are  other  instances  where  slight  provocation  has  been  considered  as  extenuat- 
ing the  guilt  of  homicide,  upon  the  ground  that  the  conduct  of  tlie  party  killing,  upon 
Buch  provocation,  might  fairly  be  attributed  to  an  intention  to  chastise  rather  tlian  to  a 
cruel  and  implacable  malice.  But  it  must  appear  that  the  punishment  was  not  urged 
with  brutal  violence.  Thus,  were  A.  finding  a  trespasser  upon  his  land,  in  his  passion 
beat  him,  and,  unluckily,  happened  to  kill  him,  it  was  holden  to  be  manslaughter.  Post. 
ii.  91.    1  Rvss.  on  Crimes,  5t!2. 

So  where  a  person,  whose  pocket  has  been  picked,  encouraged  by  a  mob,  threw  the 
pick-pocket  into  a  pond,  for  the  purpose  of  ducking  him,  but  he  was  unfortunately 
drowned :  this  was  holden  to  be  manslaughter.     R.  v.  Ray,  1   East,  P.  C.  236. 

It  seems  to  be  agreed,  that  no  breach  of  a  man's  word  or  promise,  no  trespass  either 
to  lands  or  goods,  no  affront  by  bare  words  or  gestures,  however  false  or  malicious  it 
may  be,  and  aggravated  with  the  most  provoking  circumstances,  will  excuse  him  from 
being  guilty  of  murder,  who  is  so  far  transported  thereby  as  immediately  to  attack  the 
person  who  offends  him  in  such  a  manner  as  manifestly  endangers  his  life,  without 
giving  him  time  to  put  himself  upon  his  guard;  if  he  kills  him  in  pursuance  of 
such  an  assault,  whether  the  person  slain  did  at  all  fight  in  his  defence  or  not,  for 
80  base  and  cruel  a  revenge  cannot  have  too  severe  a  construction.  1  Hawk.  c.  31. 
s.  33. 

Nor  can  any  provocation  whatever  render  homicide  justifiable,  or  even  excusable;  tlie 

VOL.   I. 41 


457  HISTORIA  PLACITORUM  CORONA. 

II.  The  second  kiud  of  malice  implied  is,  when  a  minister  of  jus- 
tice, as  a  bailift',  constable,  or  watchman,  S,'C.  is  killed  in  the  execu- 
tion of  his  office,  in  such  a  case  it  is  murder. 

If  the  sheriff's  baihff  comes  to  execute  a  process,  but  hath  not  a 


least  it  can  amount  to  is  manslaughter.  If  a  man  kill  another  suddenly,  without  any,  or 
without  a  considerable  provocation,  the  law  implies  malice,  and  the  homicide  is  murder; 
but  it"  the  provocation  were  great,  and  such  as  must  have  greatly  provoked  him,  the  kill- 
ing is  manslaughter  only.    Kel.  135.  Fust.  290. 

If  a  man  pull  another's  nose,  or  offer  him  any  other  great  personal  indignity,  and  the 
otiier  thereupon  immediately  kill  him,  it  is  manslaughter  only.  Kel.  135.  4  Bl.  Com.  191. 
But  slight  provocation  even  by  a  blow  will  not  extenuate  the  crime  where  the  revenge  ia 
disproportioned  to  the  injury,  or  outrageous  and  barbarous  in  its  nature;  as,  if  a  man, 
upon  being  gently  pushed  by  a  policeman  to  make  him  move  on  when  causing  an 
obstruction,  kill  him,  this  is  murder.  Reg-  v.  Hagan,  b  C.  Sf  P.  167.  See  also  Sted- 
marCs  case,  Fost.  292.     R.  v.  Lynch,  5  C.  Sf  P.  324. 

So,  if  a  father  see  another  person  in  the  act  of  committing  an  unnatural  crime  with 
his  son,  and  instantly  kill  him,  it  is  manslaughter  only  ;  but  if,  hearing  of  it,  he  go  in 
quest  of  the  party  and  kill  him,  it  is  murder.  Reg.  v.  Fisher,  8  C.  6f  Pr  182.  See  Fos- 
ter, 189. 

Semble,  if  A.  kill  B.  under  provocation  of  a  blow  not  sufficiently  violent  in  itself  to 
render  the  killing  manslaughter,  but  the  blow  be  accompanied  by  very  aggravating 
words  and  gestures,  that  will  be  but  manslaughter  in  A.  Reg.  v.  Sherwood,  1  Car.  ^ 
K.  556. 

In  a  case  where  there  had  been  mutual  blows,  and  then  upon  one  of  the  parties 
being  pushed  down  on  the  ground,  the  other  stamped  upon  his  stomach  and  belly  with 
great  force,  and  thereby  killed  him,  it  was  considered  only  to  be  manslaughter.  Rex  v. 
Ayes,  1  Russ.  C.  Sf  M.  496;  R.  Sf  R.  C.  C.  166.  But'  in  the  case  of  Rex  v.  Thorpe, 
1  Lewin  C.  C,  Bailey,  J.  intimated  that  death  caused  by  vp-and-down  fighting  would 
be  murder. 

In  the  case  of  death  by  stabbing,  if  the  jury  are  of  opinion  that  the  wound  was 
inflicted  by  the  prisoner  while  smarting  under  a  provocation,  so  recent  and  so  strong 
tliat  the  prisoner  may  be  considered  as  not  being  at  the  moment  master  of  his  own 
understanding,  the  offente  will  be  manslaughter;  but  if  there  had  been,  after  the  provo- 
cation, sufficient  time  for  the  blood  to  cool,  for  reason  to  resume  its  seat,  bclore  the 
mortal  wound  was  given,  the  offence  will  amount  to  murder;  and  if  the  prisoner  display 
thought,  contrivance,  and  design  in  the  n)odc  of  possessing  himself  of  the  weapon, 
and  in  again  replacing  it  immediately  after  the  blow  was  struck,  such  exercise  of 
contrivance  and  design  denotes  rather  the  presence  of  judgment  and  reason  than  of 
violent  and  ungovernable  passion.  Per  Tindal,  C,  J.  Rex  v.  Hayward,  6  Car.  ^  P. 
157. 

It  was  held  to  be  no  excuse  for  killing  a  man  who  was  out  at  night  dressed  in  white 
as  a  ghost,  for  the  purpose  of  frightening  the  neighbourhood,  that  he  could  not  otlierwise 
be  taken.     Rex  v.  S7iiilh,  1  Russ.  C.  6f  M.  459. 

Where  the  prisoner,  who  was  a  butcher,  had  employed  the  deceased,  a  shepherd  boy, 
to  tend  some  sheep  which  were  penned,  and  he  had  negligently  suffered  some  of  them 
to  escape  through  the  hurdles ;  and  the  prisoner,  upon  seeing  it,  ran  towards  the  boy, 
and  taking  up  a  stake  which  was  lying  on  the  ground,  threw  it  at  him,  and  inflicted 
an  injury  of  which  he  died  :  Held,  that  under  the  circumstances  it  was  a  question  for 
the  jury  whether  it  was  murder  or  manslaughter;  they  found  the  latter.  Rex  v.  Wiggg, 
]  Leach,  C.  C.  379. 

As  an  assault,  though  illegal,  will  not  reduce  the  crime  of  the  party  killing  the  person 
assaulting  him  to  manslaughter,  when  the  revenge  is  dispropprtionate  and  barbarous, 
much  less  will  such  jiersdual  restraint  and  coercion  as  one  man  may  lawfully  use  to- 
wards another  form  any  ground  of  extenuation.  Rex  v.  Willoiishby,  1  Russ.  C.  ^  M. 
437;  1  East,  P.  C.  288.  And  see  Rex.  v.  Steudmtjn,  1  East,  P.  C.  2"34 ;  Rex  v.  Nailor, 
1  E<ist,  P.  C.  217;  Rex  v.  MiUon,  1  E'jst,  P.  C.  411. 

If  A.  stands  with  an  offensive  vvcajjdn  in  the  doorway  of  a  room,  wrongfully  to  pre- 
vent J.  IS.  from  leaving  it,  and  others  from  entering,  and  C,  who  has  a  right  in  the  room, 


HISTORIA  PLACITORUM  CORONiE.  457 

lawful  warrant,  as  if  the  name  of  the  bailiff,  plaintiff,  or  defendant  he 
interlined  or  inserted  after  the  sealing  thereof  by  the  bailiff  himself, 
or  any  other,  if  such  bailiff  be  killed,  it  is  but  manslaughter,  and  not 
murder. 

But  if  a  process  issuing  out  of  a  court  of  record  to  a  Serjeant  at 
mace,  sheriff,  or  other  minister,  be  erroneous,  as  if  a  Capias  issue, 
when  OiDistruiffas  should  issue,  yet  the  killing  of*such  a  minister  in 
the  execution  of  that  process  is  murder,  altho  he  execute  the  process 
in  the  night, (e)  or  upon  a  Sunday. {/)    Mackally^s  case,  9  Co.  Rep. 

68.  a. 

But  if  the  process  be  executed  out  of  the  jurisdiction  of 
the  court,  the  killing  of  the  minister  is  only  manslaughter,  [458  3 
and  so  it  is,  if  the  issuing  of  the  process  were  void,  and  co- 
ram nonjudice. 

A  bailiff  or  officer/Mr?/^  8;  conns  may  arrest  a  man  without  show- 
ing his  warrant, (^)  and  a  private  bailiff  need  not  show  his  warrant 
upon  the  arrest,  till  the  party  arrested  demand  it,  and  therefore,  if  the 
party  arrested  kill  a  bailiff  upon  the  arrest  without  such  a  warrant 

(e)  9  Co.  66.  a. 

(/)  9  Co.  66.  6.  for  ministerial  acts  might  lawfully  be  executed  upon  a  Sunday,  but 
since  our  author  wrote,  the  law  is  altered  in  this  respect;  for  by  29  Car.  2.  cap.  7.  all 
process,  warrants,  Sfc.  served  or  executed  on  a  Sunday  are  void,  except  in  cases  of  trea- 
son, felony,  or  breach  of  the  peace,  so  that  now,  an  officer  arresting  a  man  upon  a  war- 
rant on  a  Sunday  is,  as  if  he  had  him  arrested  without  any  warrant  at  all. 

(g)  The  the  party  do  demand  it;  this  is  intended  of  the  warrant  constituting  him 
bailiff;  but  as  to  the  writ  or  process  against  the  party,  there  is  no  difference  be- 
tween a  public  or  a  private  bailiff,  for  in  either  case,  if  the  party  submit  to  the  arrest, 
and  do  demand  it,  he  is  bound  to  shew  at  whose  suit,  for  what  cause,  out  of  what 
court   the   process   issues,   and   when   and    where   returnable.     5   Co.  54.  a.     9    Co. 

69.  a. 


struggles  with  him  to  get  his  weapon  from  him,  upon  which  D ,  a  comrade  of  A.,  stabs 
C,  it  will  be  murder  in  D.  if  C.  dies.  Rex  v.  Longden,  R.  Se  R.  C,  C228;  1  Russ. 
C  Sf  M.  439. 

A  bare  trespass  against  the  property  of  another,  not  his  dwelling-house,  is  not  a 
sufficient  provocation  to  warrant  the  owner  in  using  a  deadly  weapon  in  its  defence; 
and  if  he  do,  and  with  it  kill  the  trespasser,  it  will  be  murder.  If  tiie  beating,  however, 
be  with  an  instrument,  and  in  a  manner  not  likely  to  kill,  it  will  be  no  more  than  man- 
slaughter. So,  if  any  one,  under  colour  or  claim  of  legal  authority,  unlawfully  arrest, 
or  actually  attempt  or  offer  to  arrest  another,  and  this  latter  in  his  resistance  kills  the 
aggressor,  it  will  be  no  more  than  manslaughter.  So  if  one,  not  a  stranger,  aids  the 
injured  party  by  endeavouring  to  rescue  him,  or  to  prevent  an  unlawful  arrest  wliea 
actually  attempted.     Commonwealth  v.  Drew,  4  Mnss.  391. 

See  Woodhead's  case,  1  Lewin,  163;  Cro.  Eliz.  778;  Kel.  131;  Langstaff's  case, 
1  Lewin,  1 62  ;  State  v.  Yarborovgh,  1  Hawks,  (iV.  C.)  Rep.  78  ;  Slate  v.  Tachet,  iliid.  210  ; 
Allen  V.  The  State,  5  Yerger,  423;  State  v.  Ford,  1  Spears,  146;  Jacob  v.  The  State, 
1  Humphrey,  493;  State  v.  Piver,  2  Haywood,  R.  29;  State  v.  Mors'in,  3  Iredell,  136; 
Slate  V.  Ferguson,  2  Hill,  619  ;  Slaughter  v.  The  Commonwealth,  11  Leigh,  681;  State  v. 
McCarty,  1  Spears,  384. 

Among  equals  the  general  rule  is,  that  words  are  not,  but  blows  are  a  sufficient 
provocalion ;  yet  tliere  may  be  words  of  reproach  so  aggravating  when  uttered  by  a 
slave;  as  to  excite  in  the  white  man  the  temporary  fury,  which  negatives  the  charge  of 
malice.    Slate  v.  Jarrott,  1  Iredell,  76. 


458  HISTORIA  PLACITORUM  CORONA. 

shewn,  it  is  murder,  and  so  it  is,  if  a  serjeant  at  mace  makes  the  ar- 
rest without  showing  his  mace,  ibidem  Mackally'' s  case.(A) 

A  bailiff  J?<r?«.s  <§'  conns  had  a  warrant  to  arrest  Peiv  upon  a  Ca- 
pias, and  came  to  arrest  him,  not  using  any  words  of  arrest,  Pew 
said.  Stand  off,  I  know  you  ivell  enough,  come  at  your  peril,  the 
baihff  takes  hold  of  him,  Pew  thrusts  him  through;  it  was  ruled  mur- 
der, tho  he  used  no  words  of  arrest,  nor  showed  his  warrant,  for  pos- 
sibly he  had  not  time.  P.  6  Car,  I.  B.  R.{i) 

A  bailiff  having  a  warrant  to  arrest  Cook  upon  a  Capias  ad  satis- 
faciendum, came  to  Cook's  house,  and  gave  iiim  notice.  Cook  me- 
naceth  to  shoot  him  if  he  depart  not,  yet  the  bailiff  departs  not,  but 
breaks  open  the  window  to  make  the  arrest,  Cook  shoots  him,  and 
kills  hinij  it  was  ruled,  1.  That  it  is  not  murder,  because  he  cannot 
break  the  house, (>t)  otherwise  it  had  been,  if  it  had  been  upon  an 
Habere  facias  possessionem,  (l)  2.  But  it  was  manslaughter,  because 
he  knew  him  to  be  a  bailiff.  But  3.  Had  he  not  known  him  to  be  a 
bailiff,  or  one  that  came  upon  that  business,  it  had  been  no  felony, 
because  done  in  defense  of  his  house.  P.  15.  Car.  B.  JR.{m) 

But  if  a  sheriff  enter  the  house  by  the  outward  door  open,  he  or 

his  bailiff  may  break  open  the  inward  doors,  tho  the  process 

r459  ]  be  without  a  Non  omittas,  and  therefore  the  killing  of  him 

in  such  case  is  murder.  Af.  17.  Jac.  B.  R.  White  and  JVilt- 

shire.(n) 

If  the  sheriff  or  bailiff  have  once  laid  hands  upon  the  prisoner,  and 
so  began  his  execution,  he  may  break  open  the  outward  doors  to 
take  him,  Sir  William  Fishers  csLse,{o)  and  if  the  warrant  be  directed 
to  five  bailiffsjtwo  or  three  may  make  execution;  resolved  in  White's 
case,  ubi  supra. 

Upon  a  warrant  against  a  felon,  or  one  that  hath  dangerously 
wounded  another,  or  for  surety  of  the  peace,  or  good  behaviour,  the 
constable  may  break  open  the  door  where  the  offender  is,  Dalt.  cap^ 
78. (p)  and  so  may  the  sheriff  or  his  bailifi'  upon  a  Capias  ntlega- 
ium,  Capias  pro  fine,  or  other  process  for  the  king,  if  not  opened 
upon  demand. 

The  constable  of  the  vill  of  .^.  comes  into  the  vill  of  B.  to  sup- 
press some  disorder,  and  in  the  tumult  the  constable  is  kild  in  the  vill 
of  B.  this  is  only  manslaughter,  because  he  had  no  authority  in  B. 
as  constable. 

But  it  seems,  that  if  the  constable  of  the  vill  of  ^.  had  a  particu- 
lar precept  from  a  justice  of  peace  directed  to  him  by  name,  or  by 
the  name  of  the  constable  of  J^.  to  suppress  a  riot  in  the  vill  of  B.  or 
to  apprehend  a  person  in  the  vill  of  B.  for  some  misdemeanor,  and 
within  the  jurisdiction  and  conusance  of  the  juslice  of  peace,  and  in 
pursuance  of  that  warrant  he  go  to  arrest  the  party  in  B.  and  in  exe- 
cution of  his  warrant  is  killed  in  B.  this  is  murder ;  for  tho,  in  such 

(A)  9  Co.  69.  a.  (m)  Cro.  Car.  537.  W.  Jones,  420. 

(i)  Cro.  Car.  183.  («)  I'almer  5-2. 

(k)  5  Co.  92.  6.  Semayne's  case.  .  (o)  Cited  in  White's  case,  Palmer  53. 

(/)  5  Co.  91.  b.  {!>)  New  Edit.  cap.  121.  p.  426. 


HISTORIA  PLACITORUM  CORONA.  459 

case,  it  seems  the  constable  was  not  bound  to  execute  the  warrant 
out  of  his  jurisdiction,  neither  could  he  do  it  singly  virtute  officii,  as 
constable  of  A.  yet  he  may  do  it  as  baihff  or  minister  by  virtue  of 
the  warrant,  artd  the  kilHn§  of  him  is  murder,  as  well  as  if  he  had 
been  constable  of  the  hundred  wherein  J2.  and  B.  lie,  or  sheriff  of 
the  county  ;  for  a  justice  of  peace  may  for  a  matter  within  his  juris- 
diction issue  his  warrant  to  a  private  person,  as  servant ;  but  then 
such  person  must  shew  his  warrant,  or  signify  the  contents  of  it. 
14  H.  8.  16.  a. 

And  altho  the  warrant  of  the  justice  be  not  in  strictness 
lawful,  as  if  it  express  not  the  cause  particularly  enough,  [460] 
yet  if  the  matter  be  withiti  hisjurisdiction  as  justice  of  peace, 
the  killing  of  such  officer  in  execution  of  his  warrant  is  murder;  for 
in  such  case  the  officer  cannot  dispute  the  validity  of  the  warrant,  if 
it  be  under  seal  of  the  justice.    14  H.  8.  16. 

If  A.  and  B.  are  constables  of  the  vill  of  C.  and  there  happens  a 
riot  or  quarrel  between  several  persons,  Ji.  joins  with  one  party,  and 
commands  the  adverse  party  to  keep  the  peace,  B.  joins  with  the 
other  party,  and  in  like  manner  commands  the  adverse  party  to  keep 
the  peace,  and  the  assistants  and  party  of  A.  in  the  tumult  kill  B.  it. 
seems  that  this  is  but  manslaughter,  and  not  murder,  in  as  much  as 
the  officers  and  their  assistants  were  one  engaged  against  the  other, 
and  each  had  as  much  authority  as  the  other. 

But  if  the  sheriff  having  a  writ  of  Habere  facias  possessionem 
against  the  house  and  lands  of  A.  and  */i.  pretending  it  to  be  a  riot 
upon  him,  gain  the  constable  of  the  vili  to  assist  him,  and  to  suppress 
the  sheriff  or  his  baihffs,  and  in  the  conflict  the  constable  is  killed, 
this  is  not  so  much  as  manslaughter ;  but  if  any  of  the  sheriff's  offi- 
cers were  killed,  it  is  murder,  because  the  constable  had  no  authority 
to  encounter  the  sheriff's  proceeding  or  acting  by  virtue  of  the  king's 
writ. 

If  a  constable,  or  tithing-man,  or  watchman  be  in  execution  of  his 
office,  and  be  killed,  it  is  murder;  and  in  all  cases  of  implied  malice, 
or  malice  in. law,  the  indictment  need  not  be  special,  but  general  ex 
malitiu  sua  prsecogitatd  interfecit  tS*  murdravit,  and  the  malice  in 
law  maintains  the  indictmant.  9   Co.  Rep.  68.  Mackally^s  case. 

But  now  toucliing  the  point  of  notice. 

1.  It  is  not  necessary  to  make  it  murder,  that  the  party  killing 
know  the  person  of  the  bailiff,  constable,  or  watchman. 

2.  If  he  be  a  h-d^xW'S.  jurus  cS*  conns,  it  seems  there  is  no  necessity 
for  him  to  notify  himself  to  be  such  by  express  words,  but  it  shall  be 
;)resumed  that  the  offender  knew  him,  as  it  seems  by  the  book  9  Co. 
Bep.  69.  b.  Mdckally^s  case  ;  qusere. 

3.  But  if  it  be  a  private  baililf,  either  the  party  must  know 

that  he  is  so,  as  in  Pew\s  case  before,  or  there  must  be  some  [  461  ] 
such  notific»ation  thereof,  whereby  the  party  may  know  it, 
as  by  saying,  /  an-est  you,  which  is  of  itself  sufficient  notice,  and 
it  is  at  the  peril  of  the  party,  if  he  kill  him  after  these  words,  or 
words  to  that  effect  pronounced,  for  it   is  murder,  if  de  facio  it 


461  HISTORIA  PLACITORUM  CORONA. 

falls  out,  that  he  were  a  bailiff,  and  had  a  warrant.    9  Co.  Rep.  iibi 

4.  A  constable  coming  to  appease  a  sudden  afTray  in  the  day  time 
in  the  village,  whereof  he  is  constable,  it  seems  every  man  e.r  officio 
is  bound  to  take  notice  that  he  is  the  constable,  because  he  is  to  be 
chosen  and  sworn  in  the  leet,  where  all  resiants  are  to  attend,  4  Co. 
Rep.  40.  b.  Youns;''s  case  \{q)  but  it  is  not  so  in  the  night-time,  unless 
there  be  some  notification,  that  he  is  the  constable. 

5.  But  whether  it  be  in  the  day  or  night,  it  is  sufficient  notice,  if 
he  declare  himself  to  be  the  constable,  or  command  the  peace  in 
king's  name,  and  the  like  for  any  that  come  in  his  assistance,  or  for 
a  watchman,  &c.  and  therefore,  if  any  of  them  are  killed  after  such  a 
notification,  it  is  murder  in  them  that  kill  him.  9  Co.  Rep.  68.  b. 
Mackalhfs  case. 

And  these  dijTerences  may  be  collected  out  of  the  books,  4  Co. 
Rep.  40.  YoiiJig^s  case.  '»  Et  en  cest  case  fuit  tenus  per  totani  cu- 
riam, que  si  sur  affray  fait  le  constable  and  autres  en  son  assist- 
ance veignont  a  suppresser  le  affray  &  a  preserver  le  peace,  &  en 
fesant  lour  office  le  constable  ou  ascun  de  ses  assistants  spit  tue,  ceo 
est  murder  en  ley,  coment  que  le  murderer  ne  scavoit  le  party,  que 
fuit  tue,  &  coment  que  le  affray  fuit  sodein,  pur  ceo  que  le  con- 
stable &  ses  assistants  veigne  per  authoritie  del  ley  pur  le  garder 
del  peace  &  a  preventer  le  danger,  que  poit  ensuer  per  le  infreinder 
de  ceo,  &  pur  ceo  le  ley  adjudgera  ceo  murder,  &  que  le  murderer 
avoit  malice  prepense,  pur  ceo,  que  il  oppose  luy  mesme  enconter 

le  justice  del  realme,  &  issint  de  le  viscont,  ou  son  bailili^, 
[  462  ]   ou  watchman  en  fesant  son  office."     And  9  Co.  Rep.  69. 

Mackally''s  case,  where  it  was  objected,  that  the  serjeant 
at  mace  did  not  show  his  mace,  whereby  the  offender  might  know 
him  to  be  an  officer;  yet  it  was  ruled,  that  the  killing  of  him  was 
murder,  1.  Because  it  was  found,  that  he  was  serviens  ad  clavam, 
juratvs  4*  cognitufi,  and  a  hdiW'i^  ju7ms  8^-  conns  need  not  show  his. 
warrant,  tho  demanded,  nor  another  bailiff  without  demand  ;  and 
when  the  books  speak  of  ?ih^'\\\Q  jurus  <§•  conus,  it  is  not  necessary 
that  he  be  known  to  the  party  arrested,  but  it  is  sufficient  if  he  be 
commonly  known.  2.  "  Si  notice  fuit  requisite  il  done  sufficient 
notice,  quant  il  dit  jeo  toy  arrest  in  le  nosme  le  roy,  cVc.  Et  le 
party  a  son  peril  doit  luy  obeyer,  &  sil  nad  loyall  garrant,  il  poit 
aver  son  action  de  faux  imprisonment,  issint  que  in  cest  case  sans 
question  le  serjant  ne  besoigne  a  monstrc  son  mace,  car  sils  serra 
chase  a  monstre  lour  mace,  ceo  serra  warning  al  party  destre  arrest 
a  fuer. 

H.  24  (5'  25  Car.  2.  A  groat  number  of  persons  assembled  in  a 
house  called  Sissinghurst  iu  Kent,  issued  out  and  committed  a  great 
riot  and  battery  upon  the  possessors  of  the  wood  adjacent.     One  of 

• 

'  (5)  The  reason  here  pivcn  by  our  author  is  not  mentioned  in  tliivS  case,  but  it  is  tljere 
held,  that  a  person's  acting  as  constable  is  a  sufficient  notification,  altho  the  party  do  not 
otherwise  know  him  to  be  so. 


HISTORTA  PLACITORUM  CORONA.  462 

their  names,  viz.  A.  was  known,  the  rest  were  not  known  ;  a  war- 
rant was  obtain'd  from  a  justice  of  peace  to  apprehend  the  said  Jl. 
and  divers  other  persons  unknown,  which  were  all  together  in  Sis- 
smghnrst-fiouse.  The  constable,  with  abont  sixteen  or  twenty 
called  to  his  assistance,  came  with  the  warrant  to  the  house,  and 
demanded  entrance,  and  acquainted  some  of  the  persons  within, 
that  he  was  the  constable,  and  came  with  tlie  justice's  warrant,  and 
demanded  A.  with  the  rest  of  the  offenders,  that  were  then  in  the 
house,  and  one  of  the  persons  within  came  and  read  the  warrant, 
but  denied  admission  to  the  constable,  or  to  deliver  A.  or  any  of  the 
malefactors,  but  going  in  commanded  the  rest  of  the  company  to 
stand  to  their  staves:  the  constable  and  his  assistants  fearing  mis- 
chief went  away,  and  being  about  five  rod  from  the  door,  B.  C.  D. 
E.  F.  6,'c.  about  fourteen  in  number,  issued  out  and  pursued  the 
constable  and  his  assistants;  the  constable  commanded  the  peace, 
yet  they  fell  on  and  kild  one  of  the  assistants  of  the  con- 
stable, and  wounded  others,  and  then  retired  into  the  house  [  463  J 
to  the  rest  of  their  company,  which  were  in  the  house, 
whereof  the  said  A.  and  one  G.  that  read  the  warrant,  were  two, 
for  which  the  said  A.  B.  C.  D.  E.  F.  G.  and  divers  others  were  in- 
dicted of  murder,  and  tried  at  the  king's  bench  bar,  wherein  these 
points  were  unanimously  agreed. 

1.  That  altho  the  indictment  were,  that  B.  gave  the  stroke,  and 
th^  rest  were  preseut,  aiding  and  assisting,  tho  in  truth  C.  gave  the 
stroke,  or  that  it  did  not  appear  upon  the  evidence,  which  of  them 
gave  the  stroke,  but  only  that  it  was  given  by  one  of  the  rioters,  yet 
that  evidence  was  sufficient  to  maintain  the  indictment,  for  in  law  it 
was  the  stroke  of  all  that  party,  according  to  the  resolution  in 
MackaUy\^  case,  9  Co.  Rep.  67.  b. 

2.  That  in  this  case  all,  that  were  present  and  assisting  to  the 
rioters,  were  guilty  of  the  death  of  the  party  slain,  tho  they  did  not 
all  actually  strike  liim,  or  any  of  the  constable's  company. 

3.  Thai  those  within  the  house,  if  they  abetted  or  counselled  this 
riot,  were  in  law  present,  aiding,  and  assisting,  and  principals  as 
well  as  those  that  issued  out  and  actually  coiumitted  the  assault, 
for  it  was  but  within  five  rod  of  the  house,  and  in  view  thereof, 
and  all  done  as  it  were  in  the  same  instant ;  vide  lord  Dacre's  case 
before. 

4.  That  here  was  sufficient  notice,  that  it  was  the  constable 
before  the  man  was  killed,  1.  Because  he  was  constable  of  tlie 
same  vill.  2.  Because  he  notified  his  business  at  the  door  before 
the  assault,  viz.  that  he  came  with  the  justice's  warrant.  3.  Be- 
cause after  his  retreat,  and  before  the  man  slain,  the  constable  com- 
manded the  peace,  and  notwithstanding  it,  tiie  rioters  fell  on,  and 
kild  the  party. 

5.  It  was4-esolved,  that  the  killing  of  the  assistant  of  the  constable 
was  murder,  as  well  as  the  killing  of  the  constable  himself. 

6.  That  those,  that  came  in  the  assistance  of  the  constable,  tho  not 


463  HISTORIA  PLACITORUM  CORONA. 

specially  called  thereunto,  are  under  the  same  protection  as  they  that 
are  called  to  his  assistance  by  name. 

7,  That  altho  the  constable  retired  with  his  company  upon  the  not 

delivering  up  of  .^.  yet  the  killing  of  the  assistant  of  the  con- 
["4643   stable  in  that  retreat  was  murder.     1.  Because  it  was  one 

continued  act  in  the  pursuance  of  his  office,  his  retiring  was 
as  necessary,  when  he  could  not  attain  the  effect  of  his  warrant,  and 
was  in  effect  a  continuation  of  the  execution  of  his  office,  and  under 
the  same  protection  of  the  law,  as  his  coming  was.  2.  Principally, 
because  the  constable  in  the  beginning  of  the  assault,  and  before  the 
man  was  stricken,  commanded  the  peace,  and  is  all  one  with 
Yunge''s  case. 

8.  It  seems,  that  tho  the  constable  had  not  commanded  the  peace, 
yet  when  he  and  his  company  came  about  what  the  law  allowd 
them,  and,  when  they  could  not  effect  it  fairly,  were  going  their  way, 
that  the  rioters  pursuing  them,  and  killing  one,  was  murder  in  them 
all,  because  it  was  done  without  provocation,  for  they  were  peace- 
ably retiring  ;  but  this  point  was  not  stood  upon,  because  there  was 
enough  upon  the  former  point  to  convict  the  offenders,  and  in  the 
conclusion  the  jury  found  nine  of  them  guilty,  and  acquitted  those 
within,  not  because  they  were  absent,  but  because  there  was  no 
clear  evidence,  thattliey  consented  to  the  assault,  as  the  jury  thought, 
and  thereupon  judgment  was  given  against  the  nine  to  be  hanged: 
and  note,  that  the  award  was  for  the  marshal  to  do  execution,  be- 
cause they  were  remanded  to  the  custody  of  the  marshal,  and  he  is 
the  immediate  officer  of  the  court,  and  precedents  in  cases  of  judg- 
ment given  in  the  king's  bench  have  commonly  run,  Et  dictum 
est  7narescallo,  4'C.  qnod  faciat  executionem  periculo  incu7nbente.{r) 

At  Newgate  in  Lent  vacation,  26  Car.  2.  the  case  was  thus :  five 
persons  committed  a  robbery  about  Hoxinslow-heath  in  Middlesex, 
viz.  Jackson  and  four  others,  the  party  robbed  raised  hue  and  cry, 
the  country  pursued  them,  and  at  Hampstead  Jackson  one  of  the 
five  turned  upon  his  pursuers,  the  rest  being  in  the  same  field,  and 
having  often  resisted  the  pursuers,  and  refusing  to  yield,  killd  one 
of  the  pursuers,  by  five  judges  then  present  it  was  ruled.  1.  That 
this  was  murder,  because  the  country,  upon  hue  and  cry  levied,  are 
authorized  by  law  to  pursue  and  apprehend  the  malefactors;  and  ia 
this  case  here  was  a  felony  done,  and  a  felony  done  by  those  per- 
sons, that  were  thus  pursued.  2.  Tliat  altho  there  was  no  warrant 
of  a  justice  of  peace  to  raise  hue  and  cry,  and  tho  there  was  no  con- 
stable in  the  pursuit,  yet  the  hue  andcrywas  a  good  warrant  in  law 

(r)  And  thus  it  was  in  the  case  of  the  Althoes,  T.  9.  Geo.  I.  B.  R.  who  were  convicted 
of  a  barbarous  jiiurdcr  in  Pemhroknshirc,  at  Hertford  assizes,  being  the  next  English 
county  ;  the  indictment  was  removed  by  Certiorari  into  the  iun<r's  bench,  in  order  to 
arijue  some  exce[)tions,  which  were  over-ruled;  and  after  some  question  made,  whetlier 
tlicy  ought  not  to  be  sent  back  to  llerefiyrdshire  to  receive  sentence  there,  the  court  was 
of  opinion,  that  they  had  the  same  jurisdietion  over  facts  committed  in  Wa/*s,  ijs  if  corh- 
mitt(  d  iti  the  next  adjacent  county  in  JCiifrtand,  and  so  they  were  sentenced  at  the  king^s 
bench,  and  were  executed  by  the  marshal  at  Kenninglon  gallows  near  Southwark. 


HISTORIA  PLACITORUM  CORONA.  465 

for  them  to  apprehend  the  offenders,  and  the  kiUing  of  any  of  the 
pnrsuants  by  Jackson  was  murder.  3.  In  as  much  as  all  of  the  rob- 
bers were  of  a  company,  and  made  a  common  resistance,  and  so  one 
animated  the  other,  all  those  of  the  company  of  the  robbers  that 
were  in  the  same  field,  tho  at  a  distance  from  Jackson,  were  all  prin- 
cipals, viz.  present,  aiding,  and  abetting.  4.  That  when  one  of  the 
maletactors  was  apprehended  a  little  before  the  party  was  hurt,  /hat 
person  being  in  custody  when  the  stroke  was  given  was  not  guilty, 
unless  it  could  be  proved,  that  after  he  was  apprehended  he  had 
animated  Jackson  to  kill  the  party :  they  had  all  judgment  of  death 
for  the  robbery,  and  four  of  them  for  the  murder. 

A  press-master  seised  B.  for  a  soldier,  and  with  the  assistance  of 
C.  laid  hold  on  him.  D.  finding  fault  with  the  rudeness  of  C.  there 
grew  a  quarrel  between  them,  and  D.  killed  C.  By  the  advice  of 
all  the  judges,  except  very  few,  it  was  ruled,  that  this  was  but  man- 
slaughter, 17  Car.  2.(5)[7] 

(s)  HuggeVs  case,  25  April  1666.  at  Newgate,  Kel.  59.  137. 

[7]  If  therefore  upon  an  affray,  the  constable,  or  otliers  in  his  assistance,  come  to  sup- 
press the  affray  and  preserve  the  peace,  and  in  executing  tlieir  otfice  the  constable  or  any 
of  his  assistants  are  killed,  it  is  murder  in  law;  although  the  murderer  knew  not  the  party 
that  was  killed,  and  although  the  affray  was  sudden  because  the  constable  and  his  assist- 
ants came  by  authority  of  law  to  keep  the  peace,  and  prevent  the  danger  wiiich  might 
ensue  by  the  breach  of  it;  and,  therefore,  the  law  will  adjudge  it  murder,  and  that  the 
murderer  had  malice  prepense,  because  he  set  himself  against  the  justice  of  the  realm; 
Cases  of  Appeals  and  Indictments,  4  Co.  40.  This  rule  is  not  confined  to  the  instant  the 
officer  is  upon  the  spot,  and  at  the  scene  of  action,  engaged  in  the  business  tliat  brought 
him  thither;  for  he  is  under  the  same  protection  of  the  law  eundo,morundo,  ei  redeundo: 
and  therefore  if  he  come  to  do  his  office,  and  meeting  with  great  opposition,  retire  and  be 
killed  in  the  retreat,  this  will  amount  to  murder;  as  he  went  in  obedience  to  the  law  and 
in  the  execution  of  his  office,  and  his  retreat  was  necessary  in  order  to  avoid  the  danger 
by  which  he  was  threatened;  and  upon  the  same  principle,  if  he  meet  with  opposition  by 
the  way,  and  be  killed  before  he  come  to  the  place,  such  opposition  being  intended  to 
prevent  his  doing  his  duty,  (which  is  a  fact  to  be  collected  from  circumstances  appearing 
in  evidence,)  this  likewise  will  amount  to  murder.  1  Russ.  on  Crimes,  532.  Fost.  308, 
309.  4  Penn.  Law  Jour.  29.  Charge  of  King,  P.,  to  Grand  Jury,  Oyer  and  Terminer, 
Philadelphia,  1S44.     See  chap.  40,  notes. 

A  policeman  is  entitled  to  the  same  protection  in  the  execution  of  his  duty  as  a  con- 
stable,  and  if  he  is  killed,  while  so  engaged,  it  will  be  murder.  Where,  therefore,  a  police- 
man, between  eleven  and  twelve  o'clock  at  night,  was  called  upon  to  clear  a  beer-house, 
which  he  did,  and  then  went  into  the  street,  where  the  prisoner  and  many  others  were 
standing  near  the  door,  when  the  prisoner,  upon  being  requested,  refused  to  go  home, 
and  used  very  abusive  and  violent  language,  and  the  policeman  laid  his  hand  on  his 
shoulder  gently,  and  told  him  to  go  away,  on  which  the  prisoner  immediately  stabbed 
him  with  a  knife  in  the  throat;"  it  was  held  that  if  the  pi>liceman  had  died,  this  would  have 
been  murder.  The  case  would  not  have  been  altered  had  the  policeman,  without  1  emg 
called  upon,  gone  in  of  his  own  accord  upon  hearing  any  noise  at  such  a  time  of  night; 
as  thereby  he  would  not  only  have  acted  within  the  Ime  of  his  duty,  but  have  been  guilty 
of  a  breach  of  it  had  he  done  otherwise;  and  in  this  case,  any  blow  given  after  the  above 
occurrences,  with  a  cutting  instrument,  would  be  precisely  the  same  as  if  it  had  beeri 
given  witliout  any  thing  having  been  done  by  the  policeman.  Rex  v.  Herns,  1  C  ^  P. 
312.  So  when  a  policeman  saw  the  prisoner  playing  the  bagpipes,  in  a  street,  at  half 
past  eleven  o'clock  at  night,  by  which  he  collected  a  large  crowd  round  him,  among 
whom  were  prostitutes  and  thieves,  and  the  policeman  told  him  he  could  not  be  allowed 
to  play  at  that  time  of  night,  and  he  must  go  on,  but  he  said  he  would  be  damned  if  he 
would,  and  the  policeman  took  hold  of  him  by  the  shoulder,  and  slightly  pushed  him,  on 
which  the  prisoner  wounded  him  with  a  razor;  it  was  held  that  if  the  prisoner  was  col- 


465  HISTORIA  PLACITORUM  CORONA. 

III.  The  third  kind  of  malice  implied  is  in  relation  to  the  person 
kiUing. 

\i  A.  come  to  rob  B.  in  his  house,  or  upon  the  highway,  or  oth^r- 


lectinor  a  crowd  of  persons  al  tliat  time  of  night,  and  the  policeman  desired  him  to  go  on, 
and  laid  his  hand  upon  Jiis  shoulder  with  that  view  only,  he  did  not  exceed  liis  duty,  and 
if  the  prisoner  then  wounded  him,  it  would  have  been  murder  if  he  had  died;  but  if  the 
policeman  gave  the  prisoner  a  blow  and  knocked  him  down,  he  was  not  justified  in  so 
doing.  Reg.  v.  Hagan,  8  C.  4-.  F.  167. 

It  is  a  general  rule  that,  when  persons  have  authority  to  arrest  or  imprison,  and  using 
the  proper  means  for  that  purpose,  are  resisted  in  so  doing,  and  killed,  it  will  be  mur- 
der in  all  who  take  part  in  such  resistance.  Foster,  270.  But  three  things  are  to  be 
attended  to  in  matters  of  this  kind;  the  legality  of  the  deceased's  authority,  the  legality 
of  the  niamier  in  which  he  executed  it,  and  the  defendant's  knowledge  of  that  authority; 
for  if  an  officer  be  killed  in  attempting  to  execute  a  writ  or  warrant  invalid  on  the  face 
of  it,  (or  if  issued  with  a  blank  in  it  and  the  blank  afterwards  filled  up;  or  if  issued  with 
an  insufficient  description  of  the  defendant.  1  East.  P.  C  310.  Hoiisin  v.  Barrow,  6  T. 
R.  122.  Rex  v.  Wimcick,  8  T.  R.  454 ;  Rex  v.  Hood,  1  Moudy,  C.  C.  81  ;)  or  against  a 
wrong  person,  or  out  of  the  district  in  which  alone  it  could  legally  be  executed ;  or  if  a 
private  person  interfere  and  act  in  a  case  where  lie  has  no  authority  by  law  to  do  so;  or 
if  the  defendant  have  no  knowledge  of  the  officer's  business,  or  of  the  intention  with 
which  a  private  person  interferes,  and  the  officer  or  private  person  be  resisted  or  killed ; 
the  killing  will  be  manslaughter  only.  Jerv.  Arch.  Crim.  Law,  9th  ed.  429.  But  when 
any  officer  is  in  the  legal  execution  of"  his  duty,  or  a  private  person  endeavouring  to  sup- 
press an  affray,  or  apprehend  a  felon,  and  is  resisted  and  killed ;  if  it  appear  that  the 
slayer  knew  the  officer's  business  or  the  intent  of  the  private  person,  either  expressly  from 
the  deceased,  or  impliedly  from  the  circumstances,  {R,  v.  Howarth,  1  Mood,  C.  C.  207,) 
the  killing  is  murder;  if  it  appear  he  was  ignorant  in  this  respect,  it  is  manslaughter  only. 
1  Hawk.  c.  31.  ss.  49,  50;  Fast.  310.  So  if  a  constable  having  a  charge  of  felony  against 
a  defendant,  take  him  without  a  warrant,  and  the  defendant,  knowing  the  constable,  kill 
him,  it  will  be  murder,  even  though  the  constable  do  not  tell  him  of  the  charge,  and  the 
defendant,  in  fact,  has  done  nothing  for  which  he  is  liable  to  be  arrested.  R.  v.  Woolmer, 
R.  4-  M.  C.  C.  334. 

If  a  constable  show  his  staff  of  office,  this,  it  seems,  is  a  sufficient  intimation  of  his 
authority.  Post.  311.  And  in  such  a  case  it  is  not  necessary  to  prove  the  deceased's 
appointment  as  constable;  proof  that  he  was  accustomed  to  act  as  constable  is  sufficient. 
1  East,  P.  C.  315.  But  private  persons,  when  they  interfere,  must  expressly  intiihate 
their  intention,  otherwise  killing  them  will  be  manslaughter  only.  Foster,  310,  311.  An 
officer  is  justified  in  arresting  on  a  charge  of  felony,  though  the  charge  does  not  in 
terms  specify  all  the  particulars  necessary  to  constitute  the  felony.  Rex  v.  Ford,  R.  S( 
R.  329,  But  where  a  constable  attempted  to  arrest  a  man  while  in  a  privy,  without  ariy 
charge  having  been  made  against  him,  but  upon  a  simple  direction  to  take  him;  where- 
upon the  man  immediately  stabbed  the  constable;  it  was  holden,  by  a  majority  of  the 
judges,  that,  as  the  actual  arrest  would  have  been  illegal,  the  attempt  to  arrest  when  the 
defendant  was  in  such  a  situation  that  he  could  not  get  away,  and  when  the  waiting  to 
give  notice  miglit  have  enabled  the  constable  to  make  the  arrest,  was  such  a  provocation 
as  reduced  the  ofience  to  manslaughter  only.  Rex  v.  Thompson,  R.  6f  M.  80.  A  consta- 
ble who  had  verbal  orders  from  the  magistrates  to  apprehend  all  thiinble-riggers,  at- 
tempted to  apprehend  the  defendant  and  iiis  companions,  who  were  playing  at  thimble- 
rig,  in  a  public  fair,  and  succeeded  in  apprehending  one  of  his  companions,  whotn  the 
defendant  rescued,  and  afterwards,  in  the  evening,  seeing  the  defendant  in  a  public  house, 
endeavoured  to  apprehend  him,  telling  that  he  did  so  for  what  he  had  been  doing  in  the 
fair;  the  defendant  escaped  into  a  [>rivy,  and  the  constable  calling  others  to  his  assistance, 
broke  open  tiie  l)rivy  and  attempted  to  apprehend  the  prisoner,  who  stabbed  one  of  the 
party;  a  conviction  for  feloniously  cutting  and  maiming  was  held  wrong.  R.  v.  Gard- 
ner, 1  Mood.  C.  C.  390.  A  [>olice  officer  found  N.  witli  potatoes  under  his  shirt, 
which  had  been  recently  dug  from  the  ground,  and  apprehended  him.  The  policeman 
called  O.  to  assist  him  :  O.  did  so;  and  a  rescue  being  attempted,  O.  was  struck  by  A, 
who  went  away,  and  O.  was  afterwards  killed  by  other  persons  who  attempted  the  res- 
cue: — Held  by  the  judges  that  the  police  officer  had  no  right  to  apprehend  iV.'and  that 
the  killing  of  O.,  tlierefore,  did  not  amount  to  murder,  and  that,  on  an  indictment  for 
niurder,  A.  could  not  be  cpnvicted  of  an  assault.    Reg.  v.  Phelps,  1  Car,  Sf  M.  180.    If  a 


HISTORIA  PLACITORUM  CORON.E.  465 

wise,  without  any  precedent  intention  of  killing  him,  yet  if  in  the 
attempt,  either  without  or  upon  the  resistance  of  B.  A.  kills  B.  this 
is  murder.     Co.  P.  C.  p.  52. 


constable  take  a  man  without  warrant,  upon  a  chargfc  which  gives  him  no  authority  to 
do  so,  and  the  prisoner  run  away,  and  is  pursued  by  J.  S.  who  was  with  the  constable  all 
the  time,  and  charged  by  him  to  arrest,  and  the  man  kill  J.  S,  it  is  manslaughter  only, 
because  the  arrest  was  iliegal,  and  J.  S.  ought  to  have  known  it;  and,  therelbrc,  the  at- 
tempt to  retake  the  prisoner  was  illegal  also.  R.  v.  Ciirvun,  R.  ^-  M.  132. 

If  a  warrant  commanding  the  arrest  of  an  individual  in  the  name  of  the  State  have  no 
eeal,  it  is  void.  If  an  officer  attempt  to  arrest  the  party  named  upon  such  authority,  he 
proceeds  at  his  peril,  and  is  a  wrong  doer;  and  if  he  be  killed  in  the  attempt  bv  the 
party,  the  shiycr  is  guilty  of  manslaught.er  and  not  murder.  Tackete  v.  The  Slate, 
3  Yerger,  392. 

If  any  one,  under  color  or  claim  of  authority,  unlawfully  arrest  or  actually  attempt  or 
offer  to  arrest  another,  and  this  latter,  in  liis  resistance,  kills  the  aggressor,  it  will  be  no 
more  than  manslaughter.  Com.  v.  Drevj,  4  Mass.  39 1 .  The  same  principle  applies  where 
one,  not  a  stranger,  aids  the  injured  party  by  endeavoring  to  rescue  him,  or  to  pre- 
vent an  unlawful  arrest,  when  actually  attempted.  Ibid.;  and  see  U.  S.  v.  Trovers,  per 
Story,  J.  2  Wlieeler''s  C.  C.  509.  Where  an  affray  had  taken  place,  and  a  quarterly  ser- 
geant appeared  and  ordered  the  wranglers  to  desist,  and  on  their  not  doing  so,  reported 
to  the  orderly  Serjeant,  who  called  at  tlic  room,  and  ordered  the  persons  engaged  to  the 
guard-house,  but  the  prisoner  remained  behind  on  some  pretence  connected  with  his 
clothes,  and  when  the  serjeant  was  temporaril}'  absent  declared  he  would  be  the  death  of 
any  one  who  attempted  to  take  him  to  the  guard-house,  retired  to  a  corner  of  the  room 
where  a  number  of  unloaded  muskets  had  been  left,  loaded  one,  and  when  the  serjeant 
entered,  with  another,  accosted  him,  ''Stand  off;  if  you  approach,  I  will  take  your  life." 
He  immediately  afterwards  fired,  and  mortally  wounded  the  sergeant  and  his  companion. 
The  case  depended  on  the  question  whether  or  no  at  the  time  the  defendant  was  legally 
liable  to  arrest,  and  the  court.  Story,  J.  and  Davis,  J.,  charged  the  jury  if  such  was  the 
case,  the  offence  was  manslangiiter,  if  otherwise,  murder.  2  Wheeler''s  C.  C.  405. 
Where  an  officer  of  a  British  ship  of  war,  in  the  year  1769,  attempted,  without  a  speci;il 
warrant,  to  impress  several  seamen  in  a.,  Massachusetts  merchant  vessel,  and  was  killed 
in  the  attempt,  it  was  held  but  manslaughter,  the  deceased  acting  without  authority. 
Case  of  the  Crew  of  the  Pitt  packet,  4  Boston  Law  Reporter,  369.  \yharton''s  Atn,  C.  L. 
236. 

If  a  person  be  impressed  who  is  not  a  proper  object  of  impressment,  or  if  the  impress- 
ment be  made  without  any  legal  warrant,  it  is  lawful  for  the  party  to  make  resistance; 
and  if  the  death  of  any  of  the  parties  concerned  ensue,  it  is  murder.  Rex  v.  Dixon, 
1  East,  P.  C.  313.    R.  Sf  R.  C.  C.  53.     Rex.  v.  Rokeby,  I  East,  P.  C.  312. 

But  if  a  seaman  be  impressed,  and  the  pressgang  be  resisted,  and  any  of  them  be 
killed  ;  if  the  pressgang  at  the  time  were  under  the  direction  of  a  commissioned  officer, 
and  such  officer  were  then  acting  with  them,  the  killing  would  be  murder,  otherwise  but 
manslaughter.     R.  v.  Broad  foot.  Fast.  154. 

A  special  constable  duly  appointed  under  the  statute  1^2  Will.  IV.  c.  41.  is  appointed 
for  an  indefinite  time,  and  retains  all  the  authority  of  a  constable  at  common  law,  until 
his  services  are  suspended  or  determined  under  the  9th  section  of  that  statute.  Reg.  v. 
Porter,  9  C.  ^  P.  778. 

In  all  cases  where  the  outer  door  of  a  dwelling-house  may  be  broken  open  in  order 
to  execute  process,  there  must  be  a  demand  of  admittance,  or  something  equivalent 
thereto,  and  a  refusal.  Fast.  320. 136;  see  Hancock  v.  Brown,  2  B.  <^-  Aid.  592.  otherwise 
if  the  officer  be  killed,  it  will  be  manslaughter  only.  Arch.  Cr.  Law,  by  Jervis,  434,  9th  ed. 

In  all  cases,  however,  above  stated  to  be  manslaughter  only,  if  there  be  evidence  of 
express  malice  in  the  party  killing,  the  homicide  will  be  murder.  R,  v.  Stocklcy,  1  East, 
P.  C.  310.     R.  v.  Curtis,  Fast.  135.    ■ 

With  respect  to  private  persons  using  their  endeavours  to  bring  felons  to  justice,  it 
should  be  observed  by  way  of  caution,  that  they  must  be  careful  to  ascertain,  in  the  first 
instance,  that  a  felony  has  actually  been  committed,  and  that  it  has  been  committed  by 
the  person  whom  they  would  pursue  and  arrest.  For  if  no  felony  has  been  committed, 
no  suspicion,  however  well  founded,  will  bring  the  person  so  interposing  within  tiie  espe- 
cial protection  of  the  law,  Cro.  Jac.  194.  2  Inst.  32.  172.  nor  will  it  be  extended  to 


465  HISTORIA  PLACITORUM  CORONA. 

So  if  men  come  to  steal  deer  in  a  park  or  forest,  or  to  rob  a  war- 
ren of  conies,  and  the  paricer,  forester,  or  warrener  resists  and  is 
killed,  this  is  murder ;  the  lord  Bacre^s  case. [8] 

If  a  prisoner  die  by  reason  of  duress  and  hard  usage 
[  466  2  by   the   gaoler,   it  is   murder  in   the   gaoler.     Co.   P.    C. 
p.  52. [9] 

those  who,  when  a  felony  has  actually  been  committed,  upon  suspicion  possibly  well 
founded,  pursue  and  arrest  the  wrong  person.  Fost.  318.  But  the  law  is  otherwise  in 
the  case  of  an  officer  acting  in  pursuance  of  a  warrant.  1  Russ.  on  Cr.  534.  And  per 
Lord  Tenterden,  C.  J.,  Beckwith  v.  Philby,  6  B.  Sf  C.  638.  "  There  is  this  distinction 
between  a  private  individual  and  a  constable;  in  order  to  justify  the  former  in  causing 
the  imprisonment  of  a  person,  he  must  not  only  make  out  a  reasonable  ground  of  sus- 
picion, but  he  must  prove  that  a  felony  has  actually  been  committed ;  whereas  a  con- 
stable,  having  reasonable  ground  to  suspect  that  a  felony  has  been  committed,  is  author- 
ized to  detain  the  party  suspected  until  inquiry  can  be  made  by  the  proper  authorities." 

If  an  innocent  person  be  indicted  for  a  felony,  and  an  attempt  be  made  to  arrest  him 
for  it, .without  warrant,  and  he  resist  and  kill  the  party  attempting  to  arrest  him  ;  if  the 
party  attempting  the  arrest  were  a  constable,  the  killing  is  murder;  1  Hawk.  c.  28.  s.  12. 
if  a  private  person,  manslaughter  ;  because  the  constable  has  authority  by  law  to  arrest 
in  such  a  case,  but  a  private  person  has  not.  And  the  same  in  all  cases  where  a  person 
is  arrested  or  attempted  to  be  arrested  upon  a  reasonable  suspicion  of  felony.  Samuel 
V.  Payne,  Doug^.  359. 

But  a  private  {\erson  may  arrest  another  whom  he  sees  attempting  to  commit  a 
felony,  and  if  he  be  killed  in  the  attempt,  it  will  be  murder.     2  Hawk.  c.  12,  s.  19. 

Where  one  interferes  to  stop  a  brawl,  and  exercises  no  other  force  than  is  necessary 
for  the  object,  having  previously  announced  his  purpose,  the  killing  of  him  by  one  of  the 
assailants  will  be  murder.  Thus,  when  A.,  in  order  to  prevent  B.  from  fighting  with 
his  brother,  laid  hold  of  him  and  held  him  down,  striking  no  blow,  upon  which  B. 
stabbed  A.,  it  was  decided,  that  if  in  such  case  A.  did  nothing  more  than  was  necessary 
to  prevent  B.  from  beating  his  brother,  tlie  killing  of  him  was  murder;  if  otherwise,  it 
wou'd  have  been  manslaughter  only.    R.  v.  Brown,  5  P.  Sf  C  120. 

The  prisoner  and  one  VV.  engaged  in  a  fight,  and  were  separated  by  the  deceased. 
Some  time  after  the  fight  was  renewed,  and  the  deceased  again  interfered,  but  being 
unable  to  take  the  prisoner  off,  called  a  negro  to  his  assistance,  who,  in  the  act  of  sepa. 
rating  the  combatants,  threw  the  prisoner  against  the  wall.  The  prisoner  then  made  at 
the  deceased  (who  endeavoured  to  avoid  him,)  with  a  knife,  and  inflicted  a  mortal  blow; 
it  was  held  that  this  was  a  case  of  murder.     State  v.  Ferguson,  2  Hill,  619. 

[8]  It  is  a  general  principle  that,  if  in  the  execution  of  or  attempt  to  execute  a 
felony,  a  man  kill  another,  he  will  be  guilty  of  murder.  Thus  if  C,  having  malice 
against  A.,  strikes  at  and  misses  him,  but  kills  B.,  this  is  murder  in  C.  1  East,  P.  C. 
230:  or  if  A.  feloniously  shoot  at  the  poultry  of  another,  and  kill  a  man,  this  will  be 
murder.    Fost.  258. 

Accidental  homicide  may  be  murder,  if  it  happen  in  the  prosecution  of  any  illegal 
act;  as  in  carrying  away  furniture  to  avoid  a  distress  for  rent.  Rex  v.  Hodgson,  1  Leach, 
C  C.  6;  Rex  v.  Huhson,  1  East,  P.  C.  258. 

On  the  trial  of  an  indictment  for  murder,  where  there  is  no  pretence  that  the 
prisoner  killed  the  deceased,  while  engaged  in  a  riot  or  other  misdemeanor,  not 
amounting  to  a  felony,  or  by  misadventure,  but  the  death  ensued  in  consequence  of  an 
intentional  violence  upon  the  person  of  the  deceased;  whether  the  prispner  designed 
to  kill  or  not,  he  is  not  entitled  to  have  the  jury  instructed  that  they  cannot  convict  of 
murder,  if  they  should  conic  to  the  conclusion  that  the  mortal  wound  was  inflicted  in 
comriiilting,  or  atlempting  to  comHiit  an  offbnoo,  which  of  itself  is  less  than  a  felony. 
The  People  v.  Rector,  19  Wen.  569;  M.  S.  Sum.  145,  175,  37.  46;  Palm.  546,  2  Roll. 
Rep.  120. 

[9]  The  case  of  Husgins  and  Barnes  (2  Strange,  882)  has  been  often  referred  to  as 
to  this  mode  of  murder.  It  was  this:  Huggins  was  warden  of  the  Fleet  Prison,  with 
power  to  execute  the  office  by  deputy,  and  appointed  one  Gibbon,  who  acted  as  deputy. 
Gibbon  had  a  servant,  Barnes,  wliosc  business  it  was  to  take  care  of  the  prisoners,  and 


HISTORIA  PLACITORUM  CORONA.  466 

So  if  a  sheriff  have  a  precept  to  hang  a  man  for  felony,  and  he 
beheads  him,  it  is  murder.     Co.  P.  C.  Ibidem. [^\0'\ 

To  these  may  be  added  the  cases  abovementioned,  viz.  if  ^^.  by 
mahce  forethought  strikes  at  B.  and  missing  him  strikes  C.  whereof 
he  dies,  tho  he  never  bore  any  mahce  to  C.  yet  it  is  murder,  and  the 
law  transfers  the  mahce  to  the  party  slain;  the  like  of  poisoning,  sed 
de  his  supra  cap. [I  Ij 


particularly  of  one  Arne:  and  Barnes  put  Arne  into  a  new  built  room,  oVer  the  com- 
mon sewer,  the  walls  of  which  were  damp  and  unwholesome,  and  kept  him  without  fire, 
chamber-pot,  or  other  necessary  convenience,  for  forty-four  days,  when  he  died.  It  ap. 
peared  that  Barnes  knew  the  unwholesome  situation  of  the  room,  and  IhatHuggins  knew 
the  condition  of  the  room,  fifteen  days  at  least  hefore  the  death  of  Arne,  as  he  liad  been 
once  present  at  tlie  prison,  and  seen  Arne  under  such  duress  of  imprisonment,  and 
turned  away^  at  which  time  Barnes  shut  the  door  of  the  room,  in  which  Arne  con- 
tinued till  h*died.  It  was  found  that  Arne  had  sickened  and  died  by  duress  of  im- 
prisonment, and  that  during  the  time  Gibbon  was  deputy,  Huggins  sometimes  acted  as 
warden.  Upon  these  facts  the  court  were  clearly  of  opinion,  that  Barnes  was  guilty 
of  murder.  But  they  thought  that  Huggins  was  not  guilty,  as  it  could  not  be  interred, 
from  merely  seeing  the  deceased  once  during  his  confinement,  that  Huggins  knew  that 
his  situation  was  occasioned  by  the  improper  treatment,  or  that  he  consented  to  the 
continuance  of  it:  and  they  said,  that  it  was  material  that  the  species  of  duress,  by 
wliich  the  deceased  came  to  his  death,  could  not  be  known  by  a  bare  looking-in  upon 
him.  Huggins  could  not  know  the  circumstances  under  which  he  was  placed  in  the 
room  against  his  consent,  or  the  length  of  his  confinement,  or  how  long  he  had  been 
without  the  decent  necessaries  of  life:  and  it  was  likewise  material,  that  no  application 
was  made  to  Huggins,  which  perhaps  might  have  altered  the  case.  And  the  court 
seemed  also  to  thmk,  that  as  Barnes  was  the  servant  of  Gibbon,  and  Gibbon  had  the 
actual  management  of  the  prison,  the  accidental  presence  of  tlie  principal  would  not 
amount  to  a  revocation  of  the  authority  of  the  deputy.  Rex  v.  Hugi^ins,  and  Barnes, 
2  Str.  882.  2  Lord  Raym.  1574.  Fost.  332.  1  East,  P.  C.  331,  332.       " 

[10]  With  respect  to  the  duty  of  officers  in  the  execution  of  criminals,  it  has  been 
laid  down  as  a  rule,  that  the  execution  ought  not  to  vary  from  the  judgment;  for  if  it 
doth,  the  officer  will  be  guilty  of  felony  at  least,  if  not  of  murder.  3  Inst.  52.  211;  4  Bl. 
Com.  179.  And  in  conformity  to  this  rule  it  has  been  holden,  that  if  the  judgment  be 
to  he  hanged,  and  the  officer  behead  the  party,  it  is  murder;  3  Inst.  52;  4  Blac.  Com. 
179.  And  that  even  the  king  cannot  change  the  punishment  of  the  law,  l)y  altering  the 
hanging  or  burning  into  beheading,  though,  when  beheading  is  part  of  the  sentence,  the 
king  may  remit  the  rest.  3  Inst.  52.  But  others  have  thought,  that  this  prerogative 
of  the  crown,  founded  in  mercy  ^nd  immemorially  exercised,  is  part  of  the  common 
law:  Fost.  270.  F.  N.  B.  244,  h.  19  Rym.  Foed.  264.  And  that  though  the  king  can- 
not by  his  prerogative  vary  the  execution  so  as  to  aggravate  the  punishment  beyond 
the  intention  of  the  law,  yet  he  may  mitigate  the  pain  or  infamy  of  it:  and,  accord, 
ingly,  that  an  officer,  acting  upon  a  warrant  from  the  crown  for  beheading  a  person 
under  sentence  of  death  for  felony,  would  not  be  guilty  of  any  offence.  Fost.  268; 
4  Blac.  Cum.  405;  1  East,  P.  C.  335.  But  the  rule  may  apply  to  an  officer  vary- 
ing from  the  judgment  of  his  own  head,  and  without  warrant  or  the  colour  of  au- 
thority. 

[11]  Where  a  blow  aimed  at  one  person  lighteth  upon  another  and  killeth  him,  this 
ia  murder.  Fost.  261.  Thus  A.,  having  malice  against  B.,  strikes  at  and  misses  him, 
but  kills  C,  this  is  murder  in  A.:  and  if  it  had  been  without  malice  and  under  such 
circumstances  that  if  B.  had  died,  it  would  have  been  but  manslaughter,  the  killing  of 
C.  also  would  have  been  but  manslaughter.  Dyer,  128;  Kel.  Ill,  112,  117;  Fost.  261; 
1  Hawk.c.  31,  s.  42;  State  v.  Cooper,  1  Green,  N.  J.  R.  Again,  A.,  liaving  malice  against 
B.,  assaults  him,  and  kills  C,  the  servant  of  B.,  who  had  come  in  aid  of  his  master:  this 
is  murder  in  A.;  for  C.  was  justified  in  attacking  A.  in  defence  of  his  master,  who  was 
thus  assaulted.     In  another  case,  if  A.  give  a  poisoned  apple  to  B.,  intending  to  poison 


466  HISTORIA  PLACITORUM  CORONA. 

her,  and  B.,  ignorant  of  it,  give  it  to  a  child,  who  took  it  and  died;  this  is  murder  in  A., 
but  no  offence  in  B.;  and  lliis,  though  A.,  who  was  present  at  the  time,  endeavoured  to 
dissuade  B,  from  giving  it  to  tlxe  child.  2  IHoioden  Com.  474.  So  where  Plummer  and 
seven  others,  opposed  the  king's  olKcers  in  the  act  of  seizing  wool.  One  of  those  per- 
sons shot  off  a  lusee  and  killed  one  of  his  own  party.  The  court  held,  in  giving  judg- 
ment upon  a  special  verdict,  that  as  the  prisoner  was  upon  an  unlawful  design,  if  he 
had  in  pursuance  tliereof  discharged  the  fusee  against  any  of  the  king's  officers  that 
came  to  resist  him,  in  the  prosecution  of  that  design,  and  by  accident  had  killed  one  of 
his  own  accomplices,  it  would  have  been  murder  in  him.  As  if  a  man  out  of  malice  to 
A.  shoot  at  him,  but  miss  him  and  kill  B.,  it  is  no  less  a  murder  than  if  he  had 
killed  the  person  intended.  Kelijng,  111;  Lord  Raym.  1581;  9  St.  Tr.  112;  Hig. 
gins's  case;  Di/er,  128;  Fl.  6U;  Cromp.  lUl;  9  Co.  81,  Agnes  Gore^s  case;  D.  WiL 
liains^s  case,  cited  in  the  Queen  v.  Mawgridge;  Kelyng,  131,  132;  9  St.  Tr.  61.  In 
another  case,  the  prisoner  mixed  poison  in  an  electuary,  of  which  her  husband,  and' 
her  father,  and  anotlier,  took  part  and  fell  sick.  Martin,  the  apothecary,  who  had  made 
the  electuary,  on  being  questioned  about  it,  to  clear  himself,  took  part  of  it  and  died. 
On  this  evidence  a  question  arose,  whether  Agnes  Gore,  the  defendant,  bad  committed 
murder;  and  the  doubt  was,  because  Martin,  of  his  own  will,  without  invitation  or 
procurement  of  any,  had  not  only  eaten  of  the  electuary,  but  had  by  ftirring  it  so 
incorporated  the  poison  with  the  electuary,  that  it  was  the  occasion  of  his  death.  The 
judges  resolved,  that  the  prisoner  was  guilty  of  the  murder  of  Martin,  for  the  law 
conjoins  the  murderous  intention  of  Agnes  in  putting  the  poison  into  the  electuary  to 
kill  her  husband,  with  the  event  which  thence  ensued;  quia  eventus  est  qui  ex  causa 
sequitur,  et  dicuntur  eventus  quia  ex  causis  eveniunt,  and  the  stirring  of  the  electuary 
by  Martin,  without  putting  in  the  poison  by  Agnes,  could  not  have  been  the  cause  of 
his  death.  9  Co.  11;  Jenk.  Cent.  220;  3  Inst.  51;  Plowd.  Com.  514;  1  Hawk.  P.  C.  Sf 
C.  31,  s.  3.  Under  the  same  head  may  be  classed  the  case  of  one  who  gave  rnedicine 
to  a  woman;  and  that  of  another  who  put  skewers  in  her  womb,  with  a  view  in  each 
case  to  procure  an  abortion ;  whereby  the  women  were  killed.  The  case,  at  common 
law,  was  murder;  though  the  original  intent,  had  it  succeeded,  would  not  have  been  so, 
but  only  a  great  misdemeanor;  for  tlie  acts  were  in  their  nature  malicious  and  delibe- 
rate, and  necessarily  attended  with  great  danger  to  the  person  on  whom  they  were 
practised.  Com.  v.  Chauncey,  2  Ashmead,  227.  ante,  90. 

If  a  man  have  a  sudden  quarrel,  and  fight  with  A.,  by  which  his  passions  are  strongly 
excited,  and  while  his  passions  are  thus  excited,  he  without  any  real  or  supposed  provo- 
cation kill  B.,  who  is  an  utter  stranger  to  the  whole  affair,  and  has  not  interfered  in  the 
quarrel,  nor  been  in  any  way  connected  therewith,  even  in  the  party's  own  supposition, 
it  will  be  murder.  U.  S.  v.  Trovers,  2  W/teeZer's  C.  C.  503,  per  Story,  J.  But,  where 
the  prisoner,  having  had  a  quarrel  with  his  wife,  pursued  her,  and  aimed  a  blow  at  her 
with  an  axe,  which  fell  on  the  head  of  his  infant  son,  then  in  her  arras,  by  which  he 
was  instantly  killed,  it  being  shown  that  the  prisoner  was  ignorant  of  his  child's  posi- 
tibn,  and  was  at  the  time  in  the  heat  of  blood,  seeking  to  avenge  himself  on  his  wife  for 
a  supposed  injury,  it  was  held,  that  as  the  case  was  to  be  considered  as  if  the  wife  had 
been  the  victim,  the  same  grade  of  homicide  would  attach  to  the  killing  of  the  child  as 
it  would  have  done  to  that  of  the  wife,  if  she  had  been  killed.  Comwonvjealth  v.  Dough, 
erty,  7  SmitWs  Laws,  296.  But  in  this,  as  in  cases  of  malice  prepense  and  express,  if  the 
blow  intended  for  one  would  in  law  only  have  amounted  to  manslaughter,  it  will  still  be 
the  same,  though  by  mistake  or  accident  it  kill  another.  Thus,  in  an  old  case,  a  quarrel 
arising  between  some  soldiers  and  a  number  of  keelmen  at  Sandgate,  a  violent  affray 
ensued,  and  one  of  the  soldiers  was  very  much  beaten.  The  prisoner,  a  soldier  who 
had  before  driven  part  of  the  mob  down  the  street  with  his  sword  in  the  scabbard,  on 
his  return,  seeing  liis  comrade  thus  used,  drew  his  sword,  and  bid  the  mob  stand  clear, 
saying  he  would  sweep  the  street;  and  on  their  pressing  on  him  he  struck  at  them  with 
the  flat-side,  and  as  they  fled  pursued  them.  Tiie  other  soldier  in  the  mean  time  had 
got  away,  and  when  the  [jrisotier  returned  he  asked  whether  they  had  murdered  his 
comrade;  and  being  several  times  again  assaulted  by  the  mob,  he  brandished  his  sword, 
and  bid  them  keep  off.  At  this  time  the  deceased,  who  from  his  dress  might  be  mis- 
taken for  a  keelman,  was  going  along  about  live  yards  from  the  prisoner;  but  before  he 
passed  the  prisoner  went  up  to  hiin  and  struck  him  on  the  head  with  the  sword,  of 
which  he  presently  died.  'I'his  was  holdcn  manslaughter:  it  was  not  murder,  because 
there  was  a  previous  provocation,  and-  the  blood  was  heated  in  the  contest:  nor  was  it 
in  self-defence,  because  there  was  no  inevitable  necessity  to  excuse  the  killing  in  that 


HISTORIA  PLACITORUM  CORONA.  466 

manner.  Foster,  262;  1  Hawk.  c.  31,  s.  U;  Leach,  C.  C.  R.  151,  S.  C.f  Wharton's 
Am  Cr.L.  231-3.  . 

At  the  Old  Bailey,  in  1690,  the  prisoners  with  twenty  mote  were- hired  by  J.  S.  to 
remove  his  goods,  in  order  to  prevent  a  distress.  The  landlord  with  some  assistants 
endeavoured  to  prevent  tliem,  and  an  affray  happened.  The  constable  ordered  them  to 
disperse,  but  could  not  prevail;  as  they  were  fighting,  one  of  the  company,  to  tiie  jurors 
unknown,  killed  a  boy  who  had  no  concern  in  the  quarrel,  as  lie  was  standing  at  his 
father's  door. 

These  facts  being  found  in  a  special  verdict,  Holt  and  Pollexfen  were  of  opinion  that 
it  was  murder  in  all  the  party.  For  though  the  removing  of  the  goods  might  be  lawful, 
yet  the  continuing  of  the  party  together  alter  the  constable  had  ordered  tliem  to  be  dis- 
persed was  unlawful;  and  besides,  the  great  numbers  that  were  thus  assembled,  and  the 
unusual  weapons  they  were  armed  with,  did  also  make  the  assembly  unlawful.  But 
the  majority  of  the  judges  held,  that  as  the  boy  was  totally  unconcerned  in  the  affray, 
the  killing  of  him  could  not  be  imputed  to  tjie  rest  who  were  merely  engaged  in  the 
general  affray.  That  the  boy  could  not  be  deemed  an  opposer  of  the  party,  so  as  to 
make  him  an  object  of  their  contention ;  and  that  they  could  no  more  be  said  to  have 
abetted  the  killing  of  him,  than  if  one  of  the  company  had  killed  a  person  looking  out 
of  a  window.  The  King  against  Hubson  and  others,  Chappets,  M.S.  1.  M.S.  Sum.  187. 
Title,  Accomplices  and  Accessaries  in  Murder. 


CHAPTER  XXXVIII. 

or  MANSLAUGHTER,  AND   PARTICULARLY  OP  MANSLAUGHTER  EXEMPT 
FROM  CLERGY,  BY  THE  STATUTE  OF   1   JAC.  8. 

Manslaughter,  or  simple  homicide,  is  the  voluntary  killing  of  an- 
other without  malice  express  or  implied,  and  differs  not  in  substance 
of  the  fact  from  murder,  but  only  differs  in  these  ensuing  circum- 
stances. 

1.  In  the  degree  of  the  offense,  mtirder  being  aggravated  with 
malice  presumed  or  implied,  but  manslaughter  not,  and  therefore  in 
manslaughter  there  can  be  no  accessaries  before.  3.  In  the  form  of 
the  indictment,  the  former  being  always /e/on2ce  exmalilici  prxcogi- 
tatd  interfecit  S,'  murdravit,  the  latter  only  felunict  interfecit.  3. 
In  the  point  of  clergy,  murder  being  by  the  statute  of  23  H.  cap.  1. 
exempt  from  the  benefit  of  clergy,  but  not  manslaughter.  4.  In  the 
form  of  the  pardon  of  murder,  for  tho  at  common  law  a  pardon  of  all 
felonies  had  pardoned  murder;  yet  by  the  statute  of  13  /?.  2.  cap.  1. 
the  pardon  of  murder  must  either  be  by  the  express  word  of  murder, 
or  else  it  must  be  a  pardon  o{  felonica  inlerftctio  with  a 
special  non  obstante  of  the  statutes  of  13  i?.  2.  H.  1.  Jac.  [  467  ] 
Lucases  case. (a) 

But  the  pardon  of  manslaughter  may  be  general  by  the  Avords  of 
felonia  ov  fclonica  interfectio,  and  hence  it  is,  that  if  a  man  indicted 
of  murder  obtains  a  pardon  of  felony,  or  felonica  interfectio  only, 
and  be  afterwards  arraigned  upon  an  indictment  of  murder,  he  must 
plead  quoad  murdrum  <§•  inteifectionem  ex  malitid precozHatd,  not 
guilty,  and  as  to  the  felony  and  interfection  must  plead  his  pardon  j 

(a)  Moor,  n.  1033,  _p.  752. 


467  HISTORIA  PLACITORUM  CORONA. 

and  then  if  the  jury  behig  charged  to  inquire  of  the  plea  of  not  griilfy, 
find  it  to  be  only  a  simple  felony  and  interfection  without  malice  fore- 
thouglit,his  pardon  is  to  be  allowd;  and  thus  upon  good  deliberation 
it  was  done  in  the  year  1668,  at  No7'wich,  Sir  Thomas  Pot  la's  case, 
and  is  pursuant  to  the  statute  of  13  iff.  2.  Which  saith,  "  That  before 
a  pardon  of  felonies  shall  be  allowed  as  to  murder,  it  shall  be  inquired 
by  good  inquest,  if  he  were  slain  by  await  or  malice  prepensed." 
And  I  remember  very,  well  in  the  case  o(  Rntaby  T.  1653,  wlio  was 
indicted  of  murder  in  Durham,  the  defendant  pleaded  a  pardon  of 
felonica  interfectio,  and  a  general  non  obstante  of  all  statutes;  and 
the  attorney  general  demurred;  it  was  ruled,  1.  That  the  pardon  was 
insufficient  with  only  a  general  non  obstante,  unless  murder  had 
been  containd  in  the  body  of  the  pardon  by  express  words.  2.  But 
tho  the  pardon  was  disallowed  as  to  murder,  yet  the  prisoner 
was  remitted  into  Durham  to  be  tried,  whether  guilty  of  murder, 
and  being  so  found  was  executed;  but  had  it  been  found  only  man- 
slaughter, he  should  have  been  discharged,  and  altho  his  plea  of  the 
pardon  to  the  indictment  of  murder  was  disallowd,  yet  it  had  stood, 
good, if  the  conviction  were  of  manslaughter:  by  the  statute  of  1  Jac. 
cap.  8.  "  Any  person  that  shall  stab  or  thrust  any  person,  that  hath 
not  any  weapon  drawn,  or  hath  not  first  stricken  the  party  that  shall 
so  stab  or  thrust,  if  the  party  die  within  six  months,  the  offender  is 
ousted  of  clergy,  provided  it  shall  not  extend  to  him,  that  kills  se 
defendendo,  or  by  misfortune,  or  in  preserving  the  peace,  or  chastiz- 
ing his  child  or  servant. 

This  act,  tho  but  temporary,  is  continued  till  some  other 
r  468  ]   act  of  parliament  shall  be  made  touching  the  continuance  or 
discontinuance  thereof.    17  Car.  I.  cap.  4. 

The  use  hath  been  in  cases  of  this  nature  to  prefer  two  indictments 
against  ofienders  in  this  kind,  viz.  one  of  murder,  another  upon  this 
statute,  and  put  the  prisoner  to  plead  to  both,  and  io  charge  the  jury 
first  with  the  indictments  of  murder,  and  if  they  find  it  not  to  be" 
murder,  then  to  charge  them  to  inquire  upon  the  other  bill,  because, 
if  convict  upon  either,  the  offender  is  ousted  of  clergy. 

The  indictment  to  put  the  prisoner  from  his  clergy  must  be  spe- 
cially formed  pursuant  to  the  statute,  viz.  that  he  did  with  a  sword, 
«^'C.  stab  the  party  dead,  he  having  no  weapon  drawn,  nor  having 
struck  first,  otherwise  it  will  be  but  a  common  manslaughter, -and  the 
party  will  have  his  clergy. 

The  indictment  need  not  conclude  contra  formam  statnii,  no 
more  than  in  burglary  or  robbery,  for  the  statute  doth  not  make  the 
offense  to  be  felony,  but  ousts  the  prisoner  of  his  clergy,  where  the 
crime  is  so  circumstantiated  as  the  statute  cxpresseth;  tliis  was 
agreed  in  the  case  of  Page  and  Harwood.     H.  23  Car.  1  B.  P.{b) 

i3ut  yet  it  doth  not, vitiate  the  indictment,  tho  it  do  conclude,  Et 
sic  inlerfecit  contra  formam  staluti,  as  was  adjudged  Trin.  9  Jac. 

(h)  In  this  case,  as  reported  in  Styles  SG.  it  is  not  agreed  to  be  so,  on  the  contrary  it 
was  denied  per  Roll,  and  doubted  per  Bacon. 


HISTORIA  PLACITORUM  CORONA.  468 

B.  R.  Bradley  and  Banks ;{c)  and  accordingly  for  the  most  part  to 
this  day  tlie  indictments  upon  this  statute  do  conclude  contra  for- 
mam  statuti,  so  it  is  good  with  or  without  such  conclusion,  but  it 
is  best  to  follow  the  common  usage,  because  every  man  dolh  not 
readily  observe  the  reason  of  the  omission  of  that  conclusion. 

In   the  case  of  Page  and   Harwood,  H.  23  Car.  1.  before  cited, 
these  points  were  resolved  in  the  king's  bench,  viz. 

1.  That  no  man  is  ousted  of  his  clergy  by  this  statute,  but  he  that 
actually  stabs,  and  therefore  those,  that  are  laid  in  the  indictment 
to  be  present,  aiding,  and  abetting  in  such  a  case,  shall  be  admitted 
to  the  benefit  of  clergy;  and  therefore,  tho  the  indictment 
of  such  a  manslaughter  be  specially  formed  upon  the  sta-  [469] 
tute,  and  conclude  contra  formam  statuti,  yet  it  is  a  good 
indictment  of  manslaughter  against  them  that  were  present,  aiding, 
and  abetting,  and  therefore  upon  such  a  special  indictment  of  man- 
slaughter upon  the  statute,  the  prisoner  may  be  convict  of  simple 
manslaughter,  and  acquitted  of  manslaughter  upon  the  statute,  and. 
the  indictment  serves  for  a  common  manslaughter,  as  well  as  a 
man  upon  an  indictment  of  murder  may  be  acquit  of  murder,  and 
convict  of  manslaughter. 

22  Mart'ii,  14  Car.  1.  At  Newgate  sessions  David  Williams 
was  indicted  specially  upon  this  statute  for  the  death  of  Francis 
Marbury ,[d)  viz.  Quod  felonice,  6i-c.  unum  malleum  de  ferro  <§• 
ligno,  anglice  an  hammer  of  wood  and  iron,  ^  manu  sua  dextrd 
erga  <§•  ad  anteriorem  partem  capitis  ipsius  Francisci  /'elo7iicb  vio- 
lenter  S,'  in  furore  sua  projecit,  4*  cum  malleo  prsedicto  ipsum 
Franciscum  in  4*  super  anteriorem  partem  capitis  4'C.  percussit  <§• 
pupugit,  anglice  did  stab  and  thrust  the  said  Marhury  having  no 
weapon  drawn,  nor  struck  first,  whereof  he  presently  died,  4'  sic 
viodo  (§*  forrnd  prsedictd  interfecit  SfC.  contra  formam  statuti  8fC. 
The  prisoner  pleaded  not  guilty,  and  a  special  verdict  was  found, 
viz.  that  upon  St.  David'^s  day  the  prisoner  being  a  Welshman 
had  a  leek  in  his  hat,  and  there  was  at  the  same  time  in  waggery  a 
Jacka-lent  in  the  street  put  up  with  a  leek,  and  one  Nicholas  Red- 
man, a  porter,  spake  to  the  prisoner,  and  pointing  to  the  Jack-a- 
lent  said.  Look  at  your  countryman,  and  the  prisoner  being  there- 
with enraged,  threw  an  hammer  a\  Redman  to  the  intent  feloniously 
to  hit  him,  but  missing  him,  the  hammer  did  hit  Francis  Marhury^ 
whereof  he  died,  ^'  sic  prsedictus  Da.v[d  praf at um  Franciscum  cu?n 
tnalleo  prsedicto  pupugit  <§•  percussit,  anglice  did  stab  and  ihrustf 
the  said  Francis  then  not  having  any  weapon  drawn,  nor  then 
having  first  stricken  the  said  David ;  and  it  was  judged  by  Bram- 
ston,  Jones,  and  the  recorder  Gardiner,  that  Williams  was  guilty 
of  manslaughter  at  the  common  law,  sed  non  contra  formam  sta- 
tuti, so  that  it  seems  they  thought  not  this  to  be  a  stubbing  within 
the  statute,  being  done  with  the  throwing  of  the  hammer, 
or  at  least  they  took  this  killing  of  Marbury,  which  was  [470] 

(c)  Cro.  Jac.  283.  (d)  W.  Jones,  432. 

VOL.  I. — 42 


470  HISTORIA  PLACITORUM  CORON.E. 

not  at  all  intended  by  Williams,  to  be  out  of  the  statute,  tho  it  ex- 
cused him  not  for  manslaughter  at  common  lavv.(£') 

The  words  of  the  statute  are  stab  or  thrust,  if  the  stabbing  or 
thrusting  were  with  a  sword,  or  with  a  pikestaff,  it  is  within  the 
statute,  so  it  seems,  if  it  be  a  shot  with  a  pistol,  or  a  blow  with  a 
sword  or  staff,  yet  quaere, i'or  J^one^  justice  denied  it. 

In  M.  5  Jac.  it  was  ruled,  that  if  the  party  slain  had  a  cudgel  ia 
his  hand,  it  is  a  weapon  drawn  within  this  statute,  and  the  prisoner 
was  admitted  to  his  clergy  at  Newgate ;  but  it  seems  it  must  be  in- 
tended of  such  a  cudgel,  as  might  probably  do  hurt,  not  a  small 
riding-rod  or  cane. 

In  the  year  1657.(/)  at  Newgate  before  Glynn,  who  then  sat  as 
chief-justice,  a  man  was  indicted  upon  this  statute,  and  a  special 
verdict  found,  that  a  bailiff  havhig  a  warrant  to  arrest  a  man, 
pressed  early  into  his  chamber  with  violence,  but  not  mentioning 
his  business,  nor  the  man  knowing  him  to  be  a  bailiff,  nor  that  he 
came  to  make  an  arrest,  snatched  down  a  sword,  that  hanged  in  his 
chamber,  and  stabbed  the  bailiff,  whereof  he  presently  died :  there 
was  some  diversity  of  opinion  among  the  judges,  whether  this  were 
within  the  statute,  but  at  length  the  prisoner  was  admitted  to  his 
clergy,  for  tho  this  case  was  within  the  words  of  the  statute,  and 
not  within  the  particular  exceptions,  yet  it  was  held,  that  this  case 
was  never  intended  in  the  statute,  for  the  prisoner  did  not  know, 
but  that  the  party  came  into  rob  or  kill  him,  when  he  thus  violently 
brake  into  his  chamber  without  declaring  his  business.(^)[l] 

(e)  Lord  chief  justice  Holt  in  Mawgridge^s  case,  Kel.  131.  concurs  with  this  judg- 
ment, for  that  it  was  not  such  a  weapon  or  act,  as  is  within  the  statute  ot"  stabbing,  but 
■he  is  of  opinion,  that  Williams  ought  to  have  been  found  guilty  of  murder,  if  the  indict- 
ment had  been  so  laid,  for  that  there  was  not  a  sutficient  provocation  to  lessen  the  offense 
to  manslaughter. 

(/)  Qiiare,  whether  the  case  here  m^ant  be  not  Buckner^s  case,  M.  1655.  reported  in 
Styles  467.  but  that,  as  it  is  there  reported,  was  not  the  case  of  a  bailiff,  but  of  a  creditor, 
who  stood  at  the  door  with  a  sword  undrawn  to  keep  the  debtor  in,  till  they  could  send 
for  a  bailiff,  and  was  killed  by  the  debtor. 

ig)  See  Kel.  136. 


[1]  There  is  no  difference  between  murder  and  voluntary  manslaughter,  but  that 
murder  is  upon  malice  aforethought,  and  manslaughter  is  upon  a  sudden  occasion.  4  Bl, 
Com.  VJl.  1  Hawk.  c.  Si.s.  1.  1  East,  P.  C.  218. 

The  following  are  some  of  the  more  usual  modes  in  which  manslaughter  occurs: 

In  fighting. — The  character  of  the  con)bat,  the  nature  of  the  weapon  used,  if  any,  the 
relative  strength  and  positions  of  the  parties,  and  all  tho  attendant  and  preceding  circum- 
stances must  be  considered  in  order  to  determine  whether  a  killing  in  combat  be  mur- 
der, manslaughter,  or  no  felony  whatever.  3  Inst.  55.  Rex  v.  Kensell,  I  C.  Sf  P.  437. 
1  East,  P.  C.  243.  Hex  v.  Taylor,  5  Burr.  27!)3.  Rex  v.  Anderson,  1  Russell,  447. 
Rex  V.  Ayers,  R.  6(  R.  IGG.  Rix  v.  Rankin,  R.  S(  R.  443.  R.  v  Smith,  8  C.  S(  P.  160. 
R.  V.  Lynch,  5  C  4"  /'.  324.  R.  v.  Kirkham,  8  f.  S^  I'.  115.  State  v.  Scott,  4  Iredell, 
10!).  Slide  V.  Rutherwood,  1  Hawks.  34!).  Com.  v.  Daily,  4  Penna,  L.  J.  158.  State  v. 
McCants,  I  Spear,  484. 

When  a  tinrd  party  interferes,  and  kills  one  of  the  combatants.  1  Hawk.  c.  31.  8.  35, 
36.55.  1  East,  P.  C.  2^1,2^2.  12  Co.  87.  Kel.  5d.  Conner  v.  The  State,  4  Yer- 
ger,  137. 


I 


HISTORIA  PLACITORUM  CORONA.  470 

Even  in  an  attempt  to  part  them  when  more  force  is  used  than  is  necessary.  Rex  v. 
Bourne,  5  C.  Sf  P.  120. 

So  also  aiming  at  one  person  and  killing  another.     Rex  v.  Conner,  T  C.  Sf  P.  438. 

Provocation  by  words  will  not  reduce  the  killing  to  manslaughter.     Ante,  chap.  37. 
note. 
.   But  a  personal  indignity  will.  Idem. 

Or  finding  a  man  in  adultery  with  his  wife.  Rex  v.  Manning,  T.  Raym.  212.  People 
V.  Ryan,  2  Wheeler's  C.  C.  54. 

Or  a  father  seeing  one  committing  an  unnatural  crime  with  his  son.  Reg,  v.  Fisher, 
8  C.  Sf  P.  162. 

Or  an  unwarrantable  imprisonment  of  a  man's  person.  Rex  v.  Buckner,  Sly.  467. 
Reg.  V.  Curvin,  R.  if  M.  132.  R.  v.  Thompson,  R.  Sf  M.  88.  R.  v.  Withers,  1  East, 
P.C.  233. 

Killing  by  excessive  correction,  if  with  an  instrument  not  likely  to  kill,  is  manslaugh- 
ter — if  with  a  deadly  weapon,  murder.  Foster,  262.  R.  v.  Conner,  7  C.  Sf  P.  438. 
Rex  V.  Turner,  Comb.  407,  408.  Rex  v.  Wigg,  1  Leach,  378.  n.  Anon.  1  East,  P.  C, 
261.  R.  V.  Lrggitt,  8  C.  Sf  P.  Idl.  R.  v.  fia;/,  1  £as<,  P.  C.  236.  i?.  v.  Cheesman, 
1  C.S(  P.  425. 

Killing  an  officer  attempting  to  make  an  irregular  arrest  may  be  manslaughter.  Jer. 
Arch.  C.  L.  429.  1  Russ.  on  C.  592.  Ante,  chap.  37,  note.  C'o?n.  v.  Drew,  4  Mass.  391. 
jRe^.  V.  Phelps,  1  Car.  Sf  Mars.  180. 

So  also  killing  in  prize  fights  or  unlawful  sports ;  the  former  under  some  circumstances 
may  be  murder;  but  if  the  sport  is  lawful  and  rightly  conducted,  the  killing  is,  if  acci- 
dental, only  misadventure.  R.  v.  Perkins,  4  C.  iSj-  P.  537.  -R.  v.  Hargrave,  5  C.  Sf  P. 
170.  R.  V.  Murphy,  6  C.  S(  P.  103.  4  Bl.  Coin.  183.  Foster,  259.  sed  vide  infra,  472. 
Reg.  V.  Canniff,  9  C.  Sf  P.  359.  ' 

And  killing  by  wanton  and  heedless  acts  is  manslaughter.  R.  V.  Mastin,  G  C.  Sf  P, 
396.  R.  V.  Timmins,!  C.  Sf  P.  499.  R.  v.  Sullivan,  1  C.  Sf  P.  641.  Fenton's  case, 
1  Lewin,  179. 

And  by  improper  medical  treatment  which  shows  a  criminal  disregard  of  human  life. 
R.  V.  Long,  iC.  Sf  P.  423.  R.  v.  5'enior,  iJ.  4-  M.  C.  C.  346.  ii.  v.  Webb,  1  M.  Sf  Rob. 
410.  R.  v,  Siinpson,  Willcock's  Laws  Medical  Profession,  Append.  227.  Com,  v. 
Thompson,  6  Mass.  124. 

Or  gross  neglect  in  delivering  medicines  of  which  death  is  the  consequence.  Tessy- 
mond's  case,  1  Lew.  169. 

Death  ensuing  from  gross  neglect  of  natural  duty,  in  the  case  of  children  or  infirm 
persons,  is  manslaughter.  R.  v.  Edwards,  8  C.  Sf  P.  611.  R.  v.  Saunders,  7  C.  S(  P. 
277.  R.  v.  Smith,  8  C.  Sf  P.  153.  /Z.  v.  Duties,  per  Patterson,  Justice,  Hertford  6'ujn. 
mer  Jssizes,  1831.     Burns' Justice,  808,  fd.  1845.     i?.  v.  Marriott,  8  C".  ^  P.  425. 

An  indictment  for  manslaughter  stated  that  the  prisoners  gave,  administered,  and 
delivered  to  one  M.  A.  divers  large  and  excessive  quantities  of  spirits  and  water,  wine 
and  porter,  and  induced,  procured,  and  persuaded  him  to  drink  them,  the  said  quantities, 
&c.  being  likely  to  cause  death,  which  they  well  knew.  It  then  averred  tliat  M.  A.,  by 
their  persuasion,  &c.  drank,  &c.  and  became  greatlj'  drunk  and  distempered,  and  while 
he  was  so,  the  prisoner  assaulted  him,  and  forced  him  to  go  into,  and  placed  and  confined 
him  in  a  cabriolet,  and  drove  and  carried  him  about  in  it  for  two  hours,  and  thereby 
greatly  shook  and  knocked  him  about,  by  means  whereof  he  became  mortally  sick,  &c., 
and  of  the  said  large  and  excessive  quantities,  «Sfc.,  and  of  the  said  drunkenness,  &.C., 
occasioned  tliereby,  and  of  the  said  shaking,  &c.,  and  of  the  sickness  and  distemper 
occasioned  by  it,  he  instantly  died.  The  deceased  was  a  man  in  possession  under  the 
sheriff,  and  one  of  the  prisoners,  of  whose  goods  he  was  in  possession,  assisted  by  his 
brother  and  a  friend,  plied  the  man  with  liquor,  themselves  drinking  freely  also,  and 
when  he  was  very  drunk  put  him  into  a  cabriolet  and  caused  him  to  be  driven  about  the 
streets ;  and  about  two  hours  after  he  had  been  put  into  tiie  cabriolet  he  was  found  dead  : 
Held,  that,  if  it  were  essential  to  prove  that  the  prisoners  knew  that  the  liquors  were 
likely  to  cause  death,  the  case  would  be  one  of  murder  and  not  of  manslaughter,  but  that 
such  allegation  was  not  a  material  part  of  the  indictment,  but  might  be  dismissed  from 
the  jury's  consideration.  Held  also,  that  if  the  prisoners,  when  the  deceased  was  drunk, 
put  him  into  a  cabriolet  and  drove  hirn  about  in  order  to  keep  him  out  of  possession,  and 
by  so  doing  accelerated  his  death,  it  would  be  manslaushler.  Rrg.  v.  Packard,  1  Car. 
^  M.  236. 


471  HISTORIA  PLACITORUM  CORONA. 


CHAPTER  XXXIX. 

TOUCHING    INVOLUNTARY   HOMICIDE,  AND    FIRST   OF   CHANCE-MEDLEY 
OR  KILLING  PER  INFORTUNIUM. 

Involuntary  ?iomicide  is  the  death  or  hurt  of  the  person  of  a  man 
against  or  besides  the  will  of  [lim  that  kills  him. 

And  in  these  cases,  to  speak  once  for  all,  the  indictment  itself  must 
find  the  special  matter,  or  in  case  the  indictment  be  of  murder  or 
manslaughter,  and  upon  the  trial  it  appears  to  the  jury  it  was  invo- 
luntary, (as  by  misfortune,  or  in  his  own  defense)  the  jury  ought  to 
find  the  special  matter,  and  so  conclude.  El  sic  per  itifortunivm,  or 
se  defendendo,  and  not  generally,  that  it  was/7er  infortunium^  or  se 
defendendo,  because  the  court  must  jndge  upon  the  special  matter, 
whether  it  be  murder,  homicide,  ov  per  infortunium,  ox  se  defenden- 
do, and  the  jury  is  only  to  find  the  fact,  and  leave  the  judgment 
thereupon  to  the  court;  and  in  such  case  the  prisoner  must  not  plead 
the  special  matter,  and  so  justify,  but  must  plead  not  guilty,  and  the 
special  matter  must  be  found  by  the  jury,  Stamf  P.  C.  Lib.  I,  cap.  7. 
fol.  15.  a.  Lib.  III.  cap.  9.  fol.  165.  a.  for  upon  the  special  matter 
found,  the  court  may  give  judgment  against  the  conclusion  of  the 
verdict,  as  that  the  fact  is  manslaughter,  tho  the  conclusion  of  the 
verdict  be  per  infortunium,  or  se  defendendo.  44  E.  3.  Coron.  94. 

This  involuntary  homicide  is  of  two  kinds,  viz.  either  1.  When  it 
is  purely  involuntary  and  casual,  as  the  killing  of  a  man  ;7er  infortu- 
nium, or  2.  When  it  is  partly  involuntary,  and  partly  voluntary,  but 
occasioned  by  a  necessity,  tliat  the  law  allows,  which  is  commonly 
called  homicide  ex  necessitate,  as  killing  a  man  in  his  own  defense, 
or  the  like;  de  quibus postea. 

Homicide  per  infortunium  is,  where  a  man  is  doing  a 

[^  47*2  ]j  lawful  act,  and  without  intention  of  bodily  harm  to  any 

person,  and  by  that  act  death  of  another  ensues,  as  if  a  man 

be  shooting  at  buts  or  pricks,  and  by  casualty  his  hand  shakes,  and 

the  arrow  kills  a  by-stander.  21  H.l.  28.  a.  6  E.  4.  7.  b. 

Or  if  a  carpenter  or  mason  in  building  casually  let  fall  a  piece  of 
timber  or  stone,  and  kills  another.  21  //.  7.  B.  Coron.  59. 

But  if  he  voluntarily  let  it  fall,  whereby  it  kills  another,  if  he  giyes 
not  due  warning  to  tliose  that  are  under,  it  will  be  at  least  man- 
'  slaughter;  quia  debt  tarn  diiigentiam  non  adhibuit. 

So  if  a  man  be  felling  a  tree  in  his  own  ground,  and  it  fall  and 
kill  a  person,  it  is  chance-medley.  6  E.  4.  7. 

IJut  in  all  these  cases,  if  it  doth  only  hurt  a  man  by  such  an  acci- 
dent, it  is  nevertlieless  a  trespass,  and  the  person  hurt  shall  recover 
his  damages,  for  tho  the  chance  excuse  from  felony,  yet  it  excuseth 
not  from  trespass.    6  E.  4.  7. 

Regularly  he  that  voluntarily  and  knowingly  intends  hurt  to  the 
person  of  a  man,  tho  he  intend  not  death,  yet  if  death  ensues,  it  ex- 


HISTORIA  PLACITORUM  CORONA.  472 

cuseth  not  from  the  guilt  of  murder,  or  manslaughter  at  least;  as  if 
A.  intends  to  beat  B.  but  not  to  kill  him,  yet  if  death  ensues,  this  is 
not  per  infortunium,  but  murder  or  manslaughter,  as  the  circum- 
stances of  the  case  happen. 

And  therefore  I  have  known  it  ruled,  that  if  two  men  are  playing 
at  cudgels  together,  or  wrestling  by  consent,  if  one  with  a  blow  or 
fall  kill  the  other,  it  is  manslaughter,  and  not  per  infortunium,  tho 
Mr,  Dalton,  cap.  96,{a)  seems  to  doubt  it;  and  accordingly  it  was 
resolved  P.  2.  Car.  2.  by  all  the  judges  upon  a  special  verdict  from 
Newgate,  where  two  friends  were  playing  at  foils  at  a  fencing  school, 
one  casually  kild  the  other;  resolved  to  be  manslaughter.[l] 

Sir  John  Chichester,  and  his  man-servant,  whom  he  very  well 
loved,  were  playing  together,  the  man  had  a  bedstafF  in  his  hand, 
and  Sir  John  had  his  rapier  in  the  scabbard,  Sir  John,  according  to 
the  usual  sport  between  them,  bids  his  man  guard  his  thrust  or  pass, 
which  he  was  making  at  him  with  his  rapier  in  the  scabbard, 
the  servant  with  the  bedstatf  brake  the  thrust,  but  withal  [473] 
struck  off  the  chape  of  the  scabbard,  whereby  the  end  of  the 
rapier  came  out  of  the  scabbard,  but  the  thrust  was  not  so  effectually 
broken,  but  the  end  of  the  rapier  prickt  the  servant  in  the  groin, 
whereof  he  died :  Sir  John  Chichester  was  for  this  indicted  of  murder, 
and  tried  at  the  king's  bench  bar,  where  all  this  evidence  was  given ; 
and  it  was  ruled,  1.  That  it  was  not  murder,  tho  the  act  itself  was 
not  lawful,  because  there  was  no  malice  or  ill  will  between  them. 
2.  That  it  was  not  barely  chance-medley,  or  per  infortunium,  be- 
cause altho  the  act,  which  occasioned  the  death,  intended  no  harm, 
nor  could  it  have  done  harm,  if  the  chape  had  not  been  stricken  off 
by  the  party  kild,  and  tho  the  parties  were  in  sport,  yet  the  act  itself, 
the  thrusting  at  his  servant,  was  unlawful,  and  consequently  the 
death,  that  ensued  thereupon,  was  manslaughter,  and  was  accord- 
ingly found  and  adjudged,  which  I  heard,  23  Car.  I, ,(6)  11  H.l. 
23.  a.  Kelw.  108,  136. 

But  if  two  play  at  barriers,  or  run  a -tilt  without  the  king's  com- 
mandment, and  one  kill  the  other,  it  is  manslaughter;  but  if  it  be  by 
the  king's  command,  it  is  not  felony,  or  at  most  per  infortunium. 
11  H.  7.  23.  B.  Coron.  229.   Dalton,  cap.  96.   Co.  P.  C.p.  56. (c)* 

If  t/5.  come  into  the  wood  of  B.  and  pull  his  hedges,  or  cut  his 

(a)  New  Edit.  cnp.  148.  p.  479. 

(6)  AleifTi  12.  This  seems  a  very  hard  case,  and  indeed  the  foundation  of  it  fails,  for 
the  pusliing  with  a  sword  in  the  scabbard  by  consent  seems  not  to  be  an  unlawful  act, 
for  it  is  not  a  dangerous  weapon  likely  to  occasion  death,  nor  did  it  do  so  in  this  case 
but  by  an  u\]fireseen  accident,  and  therein  differs  from  the  case  of  justing,  (or  prize- 
fighting) wherein  such  weapons  are  made  use  of,  as  are  fitted,  and  likely  to  give  mortal 
wounds. 

(c)  Brooke,  after  having  taken  notice  of  this  as  Fincux^s  opinion,  says,  That  other 
justices  in  the  time  of  Henry  VIII.  denied  this,  and  held  it  felony  to  kill  a  man  in  justing, 
or  spoiling  after  tliat  manner,  notwithstanding  the  king's  command,  for  such  command 
is  against  law. 

[I]  See  Foster,  259 ;  1  Hawk.  c.  29.  s.  5;  Ward's  case,  I  East,  P.  C.  270. 
*  See  post  p.  475,  note  4. 


473  HISTORIA  PLACITORUM  CORONA. 

wood,  and  B.  beat  him,  whereof  he  dies,  this  is  manslaughter, 
because,  tho  it  was  not  lawful  for  Ji.  to  cut  the  wood,  it  was  not 
lawful  for  B.  to  beat  him,  but  either  to  bring  him  to  a  justice  of 
peace,  or  punish  him  otherwise  according  to  law. 

But  if  a  school-master  correct  his  scholar,  or  a  master  his  servant, 
or  a  parent  his  child,  and  by  struggling  or  otherwise,  the 
[  474  ~\  child  or  scholar,  or  servant  die,  this  is  only  per  infortunkim, 
Crom.pt.  Just.  28  b. 

But  this  is  to  be  understood^  when  it  happens  only  upon  moderate 
correction,  for  if  the  correction  be  with  an  unfit  instrument, (^)  or  too 
outragious.  then  it  is  murder,  as  it  happened  in  a  case  at  Norwich. 
assizes  1670,  where  the  master  struck  a  child,  that  was  his  appren- 
tice, with  a  great  staff,  of  which  he  died,  it  was  ruled  murder. [2] 

Several  persons  come  to  enter  the  house  of  ^/I.  as  trespassers,  ,/^. 
shoots  and  kills  one,  this  is  manslaughter,  otherwise  it  had  been,  if 
they  had  entered  to  commit  a  felony.  Crompt.  de  Pace,  fol.  29.  a. 
Harcourt'.s  case. 

But  in  the  case  of  Levet  indicted  for  the  death  of  Frances  Free- 
mail,  the  case  was.  That  William  Levet  being  in  bed  and  asleep  in 
the  night  in  his  house,  his  servant  hired  Frances  Freeman  to  help 
her  to  do  her  work,  and  about  twelve  of  the  clock  in  the  night  the 
servant  going  to  let  out  Frances  thought  she  heard  thieves  breaking 
open  the  door,  she  therefore  ran  up  speedily  to  her  master,  and  in- 
formed him,  that  she  thought  thieves  were  breaking  open  the  door, 

{d)  As  with  a  bar  of  iron,  or  a  sword,  or  a  great  cudgel,  Kel.  64,  133. 


[2]  In  all  cases  where  the  correction  is  inflicted  with  a  deadly  weapon,  and  the  party 
dies  of  it,  it  will  be  murder;  if  with  an  instrument  not  likely  to  kill,  though  improper 
for  the  purpose  of  correction,  it  will  be  manslaughter.  Foster,  262;  Reg.  v.  Connor,  7  C. 
4-  P.  438;  R.  V.  Turner,  Comb.  407-8;  R.  v.  Wigg,  1  Leach,  378,  n.  1  EosI,  262;  R.  v, 
Leggit,  I  C  Sf  P.  191.  And  though  the  correction  exceeds  the  bounds  of  moderation, 
the  court  will  pay  a  tender  regard  to  the  nature  of  the  provocation,  where  the  act  is  ma- 
nifestly accompanied  with  a  good  intent,  and  the  instrument  not  such  as  must  in  all 
probability  occasion  death;  though  tiie  party  were  hurried  to  great  excess.  As  was  liie 
case  of  a  father  {Worcester,  Sp.  Ass.  1775,)  whose  son  had  frequently  been  guilty  of 
stealing,  complaints  of  which  had  come  to  the  father,  who  had  often  corrected  him.  At 
length,  the  son  being  charged  with  another  theft,  and  resolutely  denying  it,  though 
proved  against  him,  the  father,  in  a  passion,  beat  his  son  with  a  rope,  by  way  of  chas- 
tisement for  tlic  offence,  so  much,  that  he  died.  The  father  expressed  the  utmost  horror, 
and  was  in  the  greatest  affliction  for  what  he  had  done,  intending  only  to  have  punished 
him  with  such  severity  as  to  have  cured  him  of  his  wickedness.  The  learned  judge  who 
tried  the  father,  consulted  his  colleagues  in  office,  and  the  principal  counsel  on  the  cir- 
cuit,  who  all  concurred  in  opinion  that  it  was  only  manslaughter,  and  so  it  was  ruled. 
1  East's  P.  C.  261.  Persons  on  board  a  ship  arc  necessarily  subject  to  soniethitig  like  a 
despotic  government,  and  it  is  extremely  important  that  tiie  law  should  regulate  the 
conduct  of  those  who  exercise  dominion  over  them.  'J'lierefore,  in  a  case  of  manslaugh- 
ter, against  the  captain  and  mate  of  a  vessel,  for  accelerating  the  death  of  a  seaman, 
really  in  ill  health,  but  whom,  they  alleged,  they  believed  to  be  a  skulker,  the  question 
will  be,  in  determining  whether  it  is  a  slight  or  an  aggravated  case,  whether  the  pheno- 
mena of  the  dcatii  were  such  as  would  excite  tiic  attention  of  reasonable  and  humane 
men;  and,  in  such  a  case,  if  the  deceased  be  taken  on  board  after  be  was  discharged 
from  an  lios[)ital,  it  is  important  to  inquire  whether  he  was  sent  on  board  by  the  surgeon' 
of  the  hospital  as  a  person  in  a  fit  state  of  health  to  perform  the  duties  of  a  seaman. 
Reg.  V.  Ltggatt,  8  Car.  Sf  P.  lUl. 


HISTORIA  PLACITORUM  CORONA.  474 

the  master  rising  suddenly,  and  taking  a  rapier  ran  down  suddenly, 
Frances  hid  herself  in  the  buttery  lest  she  should  be  discovered. 
Leveies  wife  spying  Frances  in  th6  buttery,  and  not  knowing  her 
cried  out.  Here  they  he  that  wonld  undo  11s:  Level  runs  into  the 
buttery  in  the  dark,  not  knowing  Frances,  but  thinking  her  to  be  a 
thief,  and  thrusting  with  his  rapier  before  hini  hit  Frances  in  the 
breast  mortally,  whereof  she  instantly  died:  this  was  resolved  to  be 
neither  murder,  nor  manslaughter,  uor  felony:  vide  the  case  cited  by 
justice  Jones,  P.  15.  Car.  1.  B.  R.  and  Croke,  n.  l.[3]  (in  Cook^s 
case,(e)  for  kilUng  a  baihff,  that  broke  a  window  to  execute  a  Capias, 
which  was  judged  to  be  manslaughter;)  where  the  book  says  it  was 
not  felony,  qnsere  whether  it  be  not  homicide  by  misadventure,  for 
the  party  kild  was  in  truth  no  thief,  tho  mistaken  for  one,  and  tho  it 
be  not  homicide  vohintary,  yet  it  seems  to  he  per  infortunium. 

If  a  man  knowing  that  people  are  passing  along  the  street 
throws  a  stone,  or  shoots  an  iarrow  over  the  house  or  wall,  [[  475  ] 
with  intent  to  do  hurt  to  people,  and  one  is  thereby  slain, 
this  is  murder,  and  if  it  were  without  such  intent,  yet  it  is  manslaugh- 
ter, and  not  barely  ;;er  infortunium,  because  the  act  itself  was  un- 
lawful; but  if  the  man  were  tiling  an  house,  and  let  fall  a  tile  know- 
ingly, and  gave  warning,  and  yet  a  person  is  kild,  this  is  per  infor- 
tunium, but  if  he  gave  not  convenient  warning,  it  is  manslaughter, 
quia  non  udhihuit  debitam  diligentiam.{f) 

\i  Ji.  \v\  his  own  park  shoot  at  a  deer,  and  the  arrow  glancing 
against  a  tree  hits  and  kills  B.  this  is  homicide  per  infortunium,  be- 
cause it  was  lawful  for  him  to  shoot  in  his  own  park. 

But  if  ^.  without  the  licence  of  B.  hunt  in  the  park  of  B.  and 
his  arrow  glancing  from  a  tree  killeth  a  by-stander,  to  whom  he  in- 
tended no  hurt,  this  is  manslaughter,  because  the  act  was  unlawful. 

So  if  ^.  throw  a  stone  at  a  bird,  and  the  stone  striketh  and  killeth 
another,  to  whom  he  intended  no  harm,  it  is  per  infortunium. 

But  if  he  had  thrown  a  stone  to  kill  the  poultry  or  cattle  of  B.  and 
the  stone  hit  and  kill  a  by-stander,  it  is  manslaughter,  because  the  act 
was  unlawful,  but  not  murder,  because  he  did  it  not  maliciously,  or 
with  an  intent  to  hurt  the  by-stander.[4] 

(e)  Cro.  Car.  538.  W.  Jones  429. 

(/)  This  is  upon  supposition,  that  the  house  do  not  stand  near  an  liiahway  or  place 
of  resort,  for  then,  tho  he  should  cry  out  first,  it  is  manslaughter.  See  hull's  case  1664. 
Kel.  41). 

[.3]  "  Possibly  it  might  have  better  been  ruled  manslaughter  at  common  law ;  due  cir- 
cimispection  not  having  been  used,  but  it  was  not  manslaughter  within  the  statute." 
Foster,  299.  See  1  East,  P.  C.  274,  275 ;  1  Hawk.  P.  C.  c.  28.  s.  27. 

[4]  There  are  many  cases  in  which  a  party  causing  the  death  of  another,  without 
positive  intention  of  inflicting  injury,  is  criminally  responsible,  though  he  is  never 
chargeable  with  murder  under  such  circumstances.  The  test  of  responsibihty  is 
whether  the  conduct  of  the  accused  was  contrary  to  any  law,  or  not  being  so  forbidden, 
was  so  gross,  negligent,  or  violent  as  necessarily  to  produce  the  belief  that  the  act 
which  remotely  or  immediately  caused  death  was  such  an  act,  or  '.vas  done  in  such 
manner  as  to  involve  moral  impropriety.  The  conclusion  of  guilt  is  not  to  be  hastily 
drawn  nor  inferred  from  remote  circumstances,  and  it  is  only  when  a  clear  case  is 


475  HISTORIA  PLACITORUM  CORONA. 

By  the  statute  of  33  //.  8.  cap.  6.  "  No  person  not  having  lands, 
4*c,  of  the  yearly  value  of  one  luuidred  pounds  jier  annum  may 
keep  or  shoot  in  a  gun  upon  pain  of  forfeiture  of  ten  pounds." 
Suppose  therefore  such  a  person  not  quahfied  shoots  with  a  gun  at 
a  bird,  or  at  crows,  and  by  mischance  it  kills  a  by-stander  by  the 
breaking  of  the  gun,  or  some  other  accident,  that  in  another  case 
would  iiave  amounted  only  to  chance-medley,  this  will  be  no  more 
than  chance-medley  in  him,  for  though  the  statute  prohibit  him  to 
keep  or  use  a  gun,  yet  the  same  was  but  malum  prohibi- 
I]  476  3  /«w,and  that  only  under  a  penalty,  and  will  not  inhanse  the 
effect  beyond  its  nature. 

«/^.  having  deer  frequenting  his  corn-field  out  of  the  precinct  of  any 
forest  or  chace  sets  himself  in  the  night-time  to  watch  in  a  Wedge, 
and  sets  B.  his  servant  to  watch  in  another  corner  of  the  field  with 
a  gun  charged  with  bullets,  giving  him  order  to  shoot,  when  he 
hears  any  bustle  in  the  corn  by  the  deer,  the  master  himself  im- 
providently  rushes  into  the  corn,  the  servant  supposing  it  to  be  the 
deer  shoots,  and  thereby  kills  his  master  in  the  night,  this  is  neither 
petit  treason,  murder,  nor  manslaughter,  but  chance-medley,  for  the 
servant  was  misguided  by  his  master's  own  direction,  and  was  igno- 
rant, that  it  was  any  thing  else  but  the  deer.  This  was  my  opinion 
in  a  case  happening  at  Peterborough  session ;  but  it  seemed  to  me, 
that  if  the  master  had  not  given  such  direction,  that  was  the  occasion 
of  his  mistake,  it  would  have  been  manslaughter  to  have  shot  at  a 
man,  tho  by  mistaking  it  for  the  deer,  because  he  did  not  adhibere 
debilam  diligentiam  to  discover  his  mark,  but  shot  directly  at  the 
person  of  a  man,  tho  mistaking  it  for  a  deer. 

Ji.  drives  his  cart  carelessly,  and  it  runs  over  a  child  in  the  street, 
if  Ji.  have  seen  the  child,  and  yet  drives  on  upon  him,  it  is  murder; 
but  if  he  saw  not  the  child,  yet  it  is  manslaughter;  but  if  the  child 
had  run  cross  the  way,  and  the  cart  run  over  the  child  before  it 
was  possible  for  the  carter  to  make  a  stop,  it  is  per  infortunium^ 
and  accordingly  this  direction  was  given  by  us  at  Newgate  sessions 
in  1672,  and  the  carter  convict  of  manslaughter. 

If  a  man  or  boy  riding  in  the  street  whip  his  horse  to  put  him  into 
speed,  and  run  over  a  child  and  kill  him,  this  is  homicide,  and  not 
per  infortunium,  and  if  he  rid  so  in  a  press  of  people  with  intent 
to  do  hurt,  and  the  horse  had  kild  another,  it  had  been  murder  in  the 
rider,[5] 

established  tli.it  the  party  is  liable  for  the  consequences  of  an  act  which  may  be  in  itself 
legal.  Various  adjudications  illustrate  this  kind  of  responsibility  for  the  death  of  another. 
As  an  accidental  killing  by  shootitifr,  furious  driving,  taking  an  unruly  horse  into  a 
Crowd,  carelessly  laying  poison  for  rats,  want  of  caution  towards  drunken  persons,  care- 
less navigation  of  vessels,  firing  guns  in  a  populous  place,  &c.,  &c.  Foster, 'i^%,  263; 
4  Bl.  Com.  182-3;  H.  y.  rimmins,  7  C.  4-  P.  42iJ ;  R.  v.  Grout,  6  C.  &;  P.'G29  ;  Anon. 
1  East,  P.  C.  2G1 ;  R.  v.  Walker,  1  C.  ^  /'.  320;  R.  v.  Mustin,  6  C.  Sf  P.  3!)6;  R.  v. 
Green,  7  C.  Sf  P.  I. 50;  R.  v.  Allen,  idem  153;  Burton's  case,  1  Strange,  481;  Comm, 
V.  York,  7  Boston  Law.  Rep.  517;  1  Russ.  on  Cr.  657. 

[5]  See  1  Geo.  IV.  c.  4.  7  Sf8;  Geo.  IV.  c.  75,  as  to  accidents  from  furious  driving  of 


HISTORIA  PLACITORUM  C0R0N7E.  476 

BtU  if  a  man  or  boy  be  riding  in  the  street,  and  a  by-stander 
whip  the  horse,  whereby  he  runs  away  against  the  will  of  the 
rider,  and  in  his  course  runs  over  and  kills  a  child  or  man,  it  is 
chance-medley  only,  and  in  that  case  the  jury  ought  not 
to  find  him  not  guilty  generally,  but  the  special  matter;  [477]] 
but  yet,  because  the  coroner's  inquest,  which  stood  untra- 
versed,  had  found  the  special  matter,  the  court  received  the  verdict 
of  not  guilty  upon  the  indictment  by  the  grand  inquest  of  mur- 
der, and  the  party  confessed  the  indictment  by  the  coroner,  and 
had  his  pardon  of  course,  and  this  was  said  by  Lee  secondary 
to  be  the  course  at  Newgate,  1  Sept.  16  Car.  2.  Eicfiard  Pretty''s 
case. 

Tho  the  killing  of  another  per  infortunium  be  not  in  truth 
felony,  nor  subjects  the  party  to  a  capital  punishment,  and  there- 
fore usually  in  such  cases  the  verdict  concludes,  quod  inter- 
fecit  per  infortunium,  8f'  no7i  per  feloniain,^^X.  the  party  forfeits 
his  goods,  and  tho  he  ought  to  have  quasi  de  jure  a  pardon  of 
course  upon  the  certificate  of  the  conviction,  yet  he  is  not  to  be 
discharged  out  of  prison,  but  bailed  till  the  next  term  or  sessions  to 
sue  out  his  pardon  of  course,  for  tho  it  was  not  his  crime,  but  his 
misfortune,  yet  because  the  king  hath  lost  his  subject,  and  that 
men  may  be  the  more  careful,  he  forfeits  his  goods,  and  is  not 
presently  absolutely  "discharged  of  his  imprisonment,  but  bailed,  t^^ 
supra. 

And  so  strict  was  the  judicial  law  of  the  Jews  in  relation  to  the 
life  of  man,  that  even  in  this  case  the  avenger  of  blood  might  kill 
the  manslayer  per  infortunium  before  he  got  to  the  city  of  refuge, 
Duet.  xix.  5,  6. [6]    .       . 


stage-coaches,  and  accidents  by  unloading  of  boats.   4  Bl,  Com.  200;  1  East,  P.  C.  231; 
3  Wilson,  407-8  ;  Foster,  2G2,  263,  259,  280,  299 ;  Keil.  40. 

[6]  Homicide  by  misadventure  is  where  a  man  is  doing  a  lawful  act,  without  intent  to 
hurt  another,  and  death  casually  ensues.     Hale's  Sum.  31 ;  1  East's,  F.  C.  221. 

As  where  a  labourer,  being  at  work  with  a  hatchet,  and  the  head  flies  oft'  and  kills 
one  who  stands  by;  or  when  a  third  person  whips  a  horse  on  which  a  man  is  riding-, 
whereupon  he  springs  out  and  luns  over  a  child,  and  kills  him ;  in  which  case  the  rider 
is  guilty  of  homicide  by  misadventure,  and  he  who  gave  the  blow  of  manslaughter, 
1  Hawk.  c.  29.  s.  3. 

It  is  not  sufficient  that  the  act  upon  which  death  ensues  be  lawful  and  innocent  in 
itself.  It  must  be  done  in  a  proper  manner,  and  with  due  caution  to  prevent  mischief. 
Fost.262;  1  East's  P.  C.  261. 

A  p:irty  causing  the  death  of  a  child  by  giving  it  spirituous  liquors  in  a  quantity  quite 
unfit  for  its  tender  age,  is  guilty  of  manslaughter.  R.  v.  Martin,  3  C.  ^-  F.  211. 

In  the  case  of  workmen  throwing  stones  and  rubbish  from  a  house  in  the  ordinary 
course  of  their  business,  by  which  a  person  underneath  happens  to  be  killed;  if  they  de- 
liberately  saw  danger,  or  betrayed  any  consciousness  of  it,  from  whence  a  general  ma. 
lignity  of  heart  might  be  inferred,  and  yet  gave  no  warning,  it  will  be  murder,  on  account 
of  the  gross  impropriety  of  the  act.  If  they  did  not  look  out,  or  not  till  it  was  too  late, 
and  there  was  even  a  small  probability  of  persons  passing  by,  it  will  be  manslaughter. 
But  if  it  had  been  a  retired  place,  where  there  was  no  probability  of  persons  passing  by, 
and  none  had  been  seen  about  the  spot  before,  it  seems  to  be  no  more  than  accidental 
death;  for  though  the  act  itself  might  breed  danger,  yet  the  degree  of  caution  requisite 
being  only  in  proportion  to  the  apparent  necessity  of  it,  and  there  being  no  apparent  call 


477  HISTORIA  PLACITORUM  CORON.^. 

for  it  in  the  instance  put,  the  rule  applies,  de  non  existentibus  et  non  apparentihus  eadem 
est  ratio.  So,  if  any  person  had  been  seen  on  the  spot,  but  due  warning  were  given,  it 
will  be  misadventure.  Hull's  case,  1664;  Kel.  40;  1  Russ.  769.  On  the  otlier  hand,  in 
London  and  other  populous  towns,  at  a  time  of  day  when  the  streets  are  usually  thronjTed, 
it  would  be  manslaughter,  notwithstanding  the  ordinary  caution  used  on  other  occasions 
of  giving  warning;  for  in  the  hurry  and  noise  of  a  crowded  street,  few  people  hear  the 
warning,  or  sufficiently  attend  to  it,  however  loud.   1  East's  P.  C.  262, 

Again,  if  a  person  driving  a  carriage  happens  to  kill  another:  if  he  saw  or  had  timely 
notice  of  the  mischief  likely  to  ensue,  and  yet  wilfully  drove  on,  it  will  be  murder;  for 
the  presumption  of  malice  arises  from  the  doing  of  a  dangerous  act  intentionally;  there 
is  the  heart  regardless  of  social  duty.  If  he  might  have  seen  the  danger,  but  did  not 
look  before  him,  it  will  be  manslaughter,  for  want  of  due  circumspection.  But  if  the 
accident  happened  in  such  a  manner  that  no  want  of  due  care  could  be  imputed  to  the 
driver,  it  will  be  accidental  death,  and  he  will  be  excused.  1  EasVs  P.  C,  263.  The 
rricre  calling  out  will  not  excuse  the  offender.  R.  v.  Walker,  \  C.  Sf  P.  320. 

A.  was  driving  a  cart  with  four  horses,  in  the  highway  at  VVhitechapel,  and,  he 
being  in  the  cart,  and  the  horses  upon  a  trot,  they  threw  down  a  woman  who  was  going 
the  same  way  with  a  burthen  upon  her  head,  and  killed  her:  Holt,  C.  J.,  Tracy,  J.,  Bar- 
ron Bury,  and  the  Recorder  hotel,  held  this  to  be  only  misadventure.  But,  by  Lord  Hull, 
if  it  had  been  in  a  street  where  people  usually  pass,  this  had  been  manslaughter;  but  it 
was  clearly  agreed  it  could  not  be  murder.  O.  B.  Sess.  before  M.  T.  1704;  1  EasVs  P. 
€.  263. 

To  make  the  captain  of  a  steam-vessel  guilty  of  manslaughter,  in  causing  a  person  to 
be  drowned  by  running  down  a  boat,  the  prosecutor  must  show  some  act  done  by  the 
captain^  and  a  mere  omission  on  his  part  in  not  doing  tiie  whole  of  his  duty  is  not  suffi- 
cient. But  if  there  be  sufficient  light,  and  the  captain  of  a  steamer  is  either  at  the  helm 
or  in  a  situation  to  be  giving  the  command,  and  does  that  which  causes  the  injury,  he 
is  guilty  of  manslaughter.  R.  v.  Gree,  7  C.  S(  P.  156.  The  captain  and  pilot  of  a  stcamv 
boat  were  both  indicted  for  the  manslaughter  of  a  person  who  was  on  board  of  a  smack, 
by  running  the  smack  down.  The  running  down  was  attributed,  on  the  part  of  the  pro- 
secution,  to  improper  steerage  of  the  steamboat,  arising  from  there  not  being  a  man  at 
the  bow  to  keep  a  look-out  at  the  time  of  the  accident.  It  was  proved  that  there  was  a 
man  on  the  look-out  when  the  vessel  started,  about  an  hour  previous.  According  to  one 
witness,  the  captain  and  pilot  were  both  on  the  bridge  between  the  paddle-boxes;  accord- 
ing to  another,  the  pilot  was  alone  on  the  paddle-box.  Held,  that  under  these  circum- 
stances there  was  not  such  personal  misconduct  on  the  part  of  either  as  to  make  them 
guilty  of  felony.  R.  v.  Allen  and  another,  7  C.  Sf  P.  153. 

The  law  does  not  require  the  utmost  caution  that  can  be  used  ;  it  is  sufficient  that  a 
reasonable  precaution,  what  is  usual  and  ordinary  in  the  like  cases,  be  taken;  such  as 
hath  been  found  by  long  experience  in  the  course  of  human  affiiirs  to  answer  the  end; 
for  such  conduct  shows  that  the  party  was  regardful  of  social  duly,  and  free  from  any 
manner  of  guilt.  Fost.  264;  1  EasVs  P.  C.  266.  And  therefore  upon  that  principle,  Mr. 
Justice  Foster  denies  Ramptori's  case  {Kel.  41,)  to  be  law;  and  indeed  there  is  a  qi/cere 
put  to  it  in  the  margin  ot  the  report.  The  prisoner  had  found  a  pistol  in  the  street, 
which  he  had  reason  to  believe  was  not  loaded,  having  tried  it  with  the  rammer,  which 
had  gone  down  into  the  muzzle  of  the  pistol;  the  rammer,  in  fact,  being  too  short.  He 
carried  the  pistol  home,  and  his  wife  standing  before  him,  he  cocked  it  and  touched  the 
trigger;  on  which  the  pistol  went  off  and  killed  the  woman.  This  was  ruled  manslaugh- 
ter. In  truth  the  man  had  used  the  ordinary  precaution  adapted  to  the  probability  of 
danger  in  such  cases:  he  had  examined  the  pistol  by  the  usual  method  of  trial.  And 
though  it  was  doubtless  an  idle  frolic,  yet  the  heart  was  free  from  all  sort  of  guilt,  even 
the  guilt  of  negligence;  and  therefore  tlie  act  ought  to  have  been  excused.  And  the  same 
learned  judge  delermined  accordingly  in  a  case  something  similar. 

Upon  a  Sundiiy  morning,  a  man  and  his  wife  going  to  dine  at  a  friend's  house  in  the 
neighbourhood,  he  carried  his  gun  with  him,  to  divert  himself  on  the  way;  but  before 
dinner  he  discharged  it,  and  set  it  up  in  a  private  place  in  his  friend's  house.  After 
dinner  he  \vent  to  church,  and  in  the  evening  returned  home  with  his  wife  and  neigh- 
bours, bringing  his  gun  with  him  ;  which  was  put  into  the  room  where  his  wife  was,  she 
having  brought  it  [).irl  of  the  way.  He,  taking  it  U[),  touched  the  trigger,  and  the  gun 
went  off,  and  killed  his  wife.  It  came  out  in  evidence,  that,  while  the  man  was  at 
church,  a  person  belonging  to  the  family  privately  charged  the  gun,  and  went  alter  some 
game;  but  bcf'orc  tlie  service  at  church  was  ended,  returned  it  loaded  to  the  place  "from 
whence  he  had  taken  it;  and  where  the  defendant,  who  was  ignorant  of  all  that  had  passed, 


HISTORIA  PLACITORUM  CORONA.  477 

found  it  to  all  appearance  as  be  had  left  it.  Mr.  Justice  Foster  tlioug^ht  it  unnecessary  to 
inquire  wlietlier  tlie  man  had  examined  the  gun  before  he  carried  it  home;  hut  bein^  of 
opinion,  upon  the  whole  evidence,  that  he  had  reasonable  grounds  to  believe  that  it  was 
not  loaded,  he  directed  the  jury,  that  if  they  were  of  the  same  opinion,  they  should  acquit 
liim:  and  he  was  acquitted.  Fast.  265. 

A  gentleman  came  to  town  in  a  chaise,  and  before  he  got  out  of  it  fired  his  pistols  in 
the  street,  which  by  accident  killed  a  woman.  This  was  ruled  manslaughter;  the  act 
was  likely  to  breed  danger,  ar\d  manifestly  improper.  Benton's  case,  1  Str.  481. 

It  has  already  been  observed,  that  this  kind  of  homicide  is  only  when  it  happeneth  upon 
a  man's  doing  a  lawful  act;  for  if  the  act  be  done  in  the  prosecution  of  a  felonious  intention, 
it  will  be  murder.  1  Russ.  540.  For  it  is  a  general  rule  in  case  of  all  felonies,  that,  when- 
ever a  man  intending  to  commit  one  felony  happens  to  commit  another,  he  is  as  much 
guilty  as  if  he  had  intended  the  felony  which  he  actually  commits.  J  Hawk.  c.  29.  s.  11. 
As,  if  A.  shoot  at  the  poultry  of  B.,  intending  to  steal  them,  and  by  accident  kill  a  man, 
this  is  murder.  Fast.  258,  259. 

Further,  if  there  be  an  evil  intent,  though  that  intent  extendeth  not  to  death,  it  is  mur- 
der. Tims,  if  a  man,  knowing  that  many  people  are  in  the  street,  throw  a  stone  over  a 
wall,  intending  only  to  frighten  them,  or  to  give  them  a  little  hurt,  and  thereupon  one  is 
killed,  this  is  murder;  for  he  had  an  ill  intent,  though  that  intent  extended  not  to  death, 
and  though  he  knew  not  the  party  slain.  3  Inst.  57. 

Although  this  species  of  homicide  is  not  properly  a  man's  crime,  but  his  misfortune, 
yet,  because  a  human  being  is  killed,  and  in  respect  of  tl>e  great  favour  the  law  has  to 
the  life  of  man,  and  to  the  end  that  men  should  use  all  care,  diligence,  and  circumspec- 
tion, in  all  they  do,  that  no  hurt  should  come  of  their  actions,  a  person  convicted  tliereof, 
before  the  9  Geo.  IV.  c.  31.  s.  10.  forfeited  his  goods;  but  by  that  statute  he  is  exempted 
from  all  punishment.     See  ante,  chap.  38.  note.  3  Burns'  Justice,  800*.  ed.  1845, 


CHAPTER  XL.  [  478  ] 

OF    MANSLAUGHTER    EX    NECESSITATE,    AND    FIRST    SE    DEFENDENDO. 

I  COME  to  those  homicides  that  are  ex  necessitate,  and  this  necessity- 
makes  the  homicide  not  simply  voluntary,  but  mixed,  partly  volun- 
tary and  partly  involuntary,  and  is  of  two  kinds. 

1.  That  necessity,  which  is  of  a  private  nature. 

2.  That  necessity,  which  relates  to  the  pubhc  justice  and  safety. 
The  former  is  that  necessity,  which  obligeth  a  man  to  his  own 

defense  and  safeguard,  and  this  takes  in  these  inquiries,  1.  What  may 
be  done  for  the  safeguard  of  a  man's  own  life.  2.  What  may  be  done 
for  the  safeguard  of  the  life  of  another.  3.  What  may  be  done  for 
the  safeguard  of  a  man's  goods.  4.  What  may  be  done  for  the  safe- 
guard of  a  man's  house  of  habitation. 

I.  As  touching  the  first  of  these,  viz.  homicide  in  defense  of  a  man's 
own  life,  which  is  usually  styled  se  defendendo. 

It  is  generally  to  be  observed,  that  in  case  of  any  indictment  or 
charge  of  felony  the  prisoner  cannot  plead  any  thing  by  way  of  jus- 
tification, as  that  he  did  it  in  his  own  defense,  or  per  iuforfiniium, 
but  must  plead  7wi  quil/i/ ;  and  upon  his  trial  the  special  n)aiter  is 
to  be  found  by  the  jury,  and  thereujion  the  court  gives  judgment. 

Homicide  se  defendendo  is  of  two  kinds. 

1.  Such,  as  tho  it  excusetli  from  death,  yet  it  excuseth  not  the 


478  HISTORIA  PLACITORUM  CORONiE. 

forfeiture  of  goods,  nor  is  the  party  to  be  absolutely  discharged  out 
of  prison,  but  bailed,  and  to  purchase  his  pardon  of  course. 

2.  Such  as  wholly  acquits  from  all  kinds  of  forfeiture. 

First,  therefore,  of  common  homicide  se  defendendo. 
[479]       Homicide  ^e  defendendo  is  the  killing  of  another  person 
in  the  nece6\s«ry  defence  of  himself  against  him  that  assaults 
him.[l] 

In  this  case  of  homicide  se  defendendo^  there  are  these  circum- 
stances observable. 

1.  It  is  not  necessary  that  the  party  killed  be  the  first  aggressor 
or  assailant,  or  of  his  party,  tho  commonly  it  holds. 

There  is  a  malice  between  A.  and  B.  they  appoint  a  time  and 
place  to  fight,  and  meet  accordingly,  A.  gives  the  first  onset,  B.  re- 
treats as  far  as  he  can  with  safety,  and  then  kills  Ji.  who  had  other- 
wise killed  him;  this  is  murder,  for  they  met  by  cotnpact  and  design, 
and  therefore  neither  shall  have  the  advantage  of  what  they  them- 
selves each  of  them  created. 

There  is  malice  between  Ji.  and  B.  they  meet  casually,  ./5.  assaults 
B.  and  drives  him  to  the  wall,  B.  in  his  own  defense  kills  A.  this  is 
se  dcfendendo^^w(\  shall  not  be  heightened  by  the  former  malice  into 
murder  or  homicide  at  large,  Copston''s  case  cited  Crompt.  de  Pace 
21.  b.  and  Dalt.  cap.  98. (a)  for  it  was  not  a  killing  upon  the  account 
of  the  former  malice,  but  upon  a  necessity  imposed  upon  him  by  the 
assault  oi  A. 

A.  assaults  B.  and  B.  presently  thereupon  strikes./?,  without  flight, 
whereof.^,  dies,  this  is  manslaughter  in  B.  and  not  se  defendendo, 
43.  Assiz.  31.  but  if  B.  strikes  A.  again,  but  not  mortally,  and  blows 
pass  between  them,  and  at  length  B.  retires  to  the  wall,  and  being 
pressed  upon  hy  A.  gives  him  a  mortal  wound,  whereof./?,  dies,  this 
is  only  liomicide  se  defendendo,  altho  that  B.  had  given  divers  other 

(a)  New  Edit.  cap.  150.  p.  484. 


[1]  Foster  divides  homicide  in  self-defence  into  two  classes;  the  first  he  calls  justifiable 
self-defence,  tlic  second  self-defence  culpable.  In  the  former,  the  injured  party  may 
repel  force  by  force  in  defence  of  his  person,  habitation,  or  property,  against  one  who 
manifestly  intendeth  and  endeavoureth  by  violence  or  surprise  to  commit  a  known  felony 
upon  either.  In  these  cases  he  is  not  obliged  to  retreat,  but  may  pursue  his  adversary 
till  he  findeth  himself  out  of  danger,  and  if  in  a  conflict  between  them  he  happeneth  to 
kill,  such  killing  is  justifiable.  Kel.  128,  129.  The  right  of  self-defence  in  these  cases  is 
founded  in  the  law  of  nature,  and  is  not,  nor  can  be,  superseded  by  the  law  of  society. 
For  before  civil  societies  were  formed,  for  mutual  defence  and  preservation,  the  right  of 
self-defence  resided  in  individuals;  it  could  not  reside  elsewhere;  and  since  in  cases  of 
necessity,  individuals  incorporated  into  society  cannot  resort  for  |)rotection  to  the  law  of 
the  society,  that  law  with  great  propriety  and  strict  justice  considereth  them,  as  still,  in 
that  instance,  under  the  piotcction  of  the  law  of  nature.  In  the  latter — homicide,  cul- 
pable but  excusable,  or  homicide  se  defevdrndo,  upon  chance  medley — as  when  a  person 
engaged  in  a  sudden  aftVay,  (juits  the  combat  before  a  mortal  wound  given,  and  retreats 
or  flees  as  far  as  he  can  with  safety,  and  then  urged  by  mere  necessity,  kills  his  adver- 
sary for  tiie  preservation  of  his  own  lilc.  Foster,  273-7.   1  Hawkins,  c.  29.  s.  13. 

'I'he  general  rule  is  that,  in  order  to  excuse  a  homicide,  on  the  ground  of  self-defence, 
it  must  clearly  appear  that  it  was  a  necessary  act,  in  order  to  avoid  destruction,  or  some 
great  bodily  harm.  • 


HISTORIA  PLACITORUM  CORONA.  479 

strokes,  that  were  not  mortal  before  he  retired  to  the  wall,  or  as  far 
as  he  could.  Stamf.  P.  C.  Lib.  I.  cap.  1.  fol.  15.  a.  Dalt.  cup.  98. 
Crump.  28.  a. 

But  now  suppose,  that  ^.  by  malice  makes  a  sudden  assault  upon 
B.  who  strikes  again,  and  pursuing  hard  upon  j3.  A.  retreats  to  the 
wall,  and  in  saving  his  own  life  kills  B.  some  have  held  this  to  be 
murder,  and  not  se  defendendo,  because  A.  gave  the  first  assault, 
Cromp.  fol.  22.  b.  grounding  upon  the  book  of  3  E.  3.  Itin.  North. 
Coron.  287.  but  Mr.  Ballon.,  ubi  supra,  thinketh  it  to  be  ^e 
defendendo, {b)  tho  A.  made  the  first  assault,  either  with  or  [480  ] 
without  malice,  and  then  retreated;  therefore  the  book  of 
3  E.  3.  Coron.  284,  287.  which  occasioned  the  doubt,  is  to  be  ex- 
amined, which  is  thus. 

It  seems  to  me,  that  li  A.  did  retreat  to  the  wall  upon  a  real  intent 
to  save  his  life,  and  then  merely  in  his  own  defense  killed  B.  that  it 
is  se  defendendo,  and  with  this  agrees  Slamf.  P.  C.  Lib.  I.  cap.  7. 
fol.  15.  a.  But  if  on  the  other  side  A.  knowing  his  advantage  of 
strength,  or  skill,  or  weapon,  retreated  to  the  wall  merely  as  a  design 
to  protect  himself  under  the  shelter  of  the  law,  as  in  his  own  defense, 
but  really  intended  the  killing  of  B.  then  it  is  murder,  or  manslaugh- 
ter, as  the  circumstance  of  the  case  requires,  and  that  was  the  reason, 
why  the  judges  demanded  of  the  jury  3  E.  3,  whether  he  killed  B. 
of  malice,  or  otherwise  to  save  himself,  and  when  the  jury  answered, 
//  was  to  save  his  life,  he  was  remitted  to  prison  to  have  his  pardon 
of  course.    3  E.  3.  Coron.  284.  287.[2] 

2.  In  homicide  se  defendendo,  there  seems  necessary  some  act  to 
be  done  by  the  party  killing,  for  if  he  be  merely  passive,  this  will 
make  it  only  a  killing  per  infortunium. 

A.  assaults  B.  who  flies  to  the  wall,  or  falls,  holding  his  sword 
knife,  or  pike  in  his  hand,  A.  runs  violently,  or  falls  upon  the  knife 
of  B.  without  any  thrust  or  stroke  offered  at  him  by  B.  and  there- 
upon dies,  this  is  death  per  infortunium,  and  some  have 
said,  that  in  this  case  A.  is  felo  de  se,  de  quo  antea,  vide  [  481  ] 
Stamf.  P.  C.  Lib.  I.  cap.  1.  p.  16.  8,-  libros  ibi. 

(6)  The  case  here  referred  to  in  Dalton  is  the  case  of  an  affray,  (which  is  likewise  the 
case  put  by  Stamford)  of  this  he  says  there  was  a  difference  of  opinions,  but  delivers  no 
opinion  of  his  own ;  but  as  to  the  case  here  put  by  our  author  of  a  maliciovs  assault, 
which  he  afterwards  mentions,  he  seems  plainly  to  be  of  the  contrary  opinion,  and  to 
think  it  murder;  nor  do  I  see  any  thing  in  Coron.  284,  287.  that  could  occa.sion  any 
doubt  about  this  matter,  or  any  way  relates  to  this  case,  for  both  those  cases  (which 
seem  to  be  but  one  and  the  same)  were  of  an  affray,  in  wliich  he  that  struck  first,  was 
the  party  killed,  and  the  party  killing  struck  not  at  all,  till  after  he  had  fled  as  fur  as  he 
could,  and  was  necessitated  to  do  it  in  his  own  defense;  so  that  the  reason  assigned  by 
our  author  for  demanding  the  question  of  the  jury  is  grounded  on  a  mistake;  that, 
which  to  me  seems  the  reason  of  putting  that  question  to  the  jury,  is  this,  the  jury  had 
found  the  fact  specially,  but  had  not  drawn  any  general  conclusion  from  it,  the  ques- 
tion was  therefore  asked,  tliat  they  might  make  the  usual  conclusion,  unde  dicuiit.  quod 
prcedictus,  A.  (the  defendant)  se  defendendo  prcedictum  B.  (the  deceased)  iiiterfecit,  Sf 
non  per  feloniam  aut  malitiam  pracuffitatum,  which  was  done  accordingly;  and  there- 
fore  in  the  first  of  those  places,  viz,  Cornn.  284.  the  usual  conclusion  being  inserted,  no 
notice  is  taken  of  the  question  put  to  the  jury. 

[2j  Foster,  277.    1  Hawk.  c.  29.  «.  17. 


481  HISTORIA  PLACITORUM  CORON.E. 

3.  Regularly  it  is  necessary,  that  the  person  that  kills  another  in 
his  own  defense,  fly  as  far  as  he  may  to  avoid  the  violence  of  the 
assault  before  he  turn  upon  his  assailant;  for  tho  in  cases  of  hostility 
between  two  nations  it  is  a  reproach  and  piece  of  cowardice  to  fly 
from  an  enemy,  yet  in  cases  of  assaults  and  affrays  between  subjects 
under  the  same  law,  the  law  owns  not  any  such  point  of  honour, 
because  the  king  and  his  laws  are  to  be  the  vindices  injuriaruni, 
and  private  persons  are  not  trusted  to  take  capital  revenge  one  of 
anotlier.[3] 

But  this  hath  some  exceptions. 

1.  In  respect  of  the  person  killing. 

If  a  gaoler  be  assaulted  by  his  prisoner,  or  if  the  sheriff  or  his 
minister  be  assaulted  in  the  execution  of  his  office,  he  is  not  bound 
to  give  back  to  the  wall ;  but  if  he  kills  the  assailant,  it  is  in  law 
adjudged  se  clef oidendo,  iho  he  give  not  back  to  tlie  wall  ;[4]  the 
like  of  a  constable  or  watchman,  for  they  are  ministers  of  justice, 
and  under  a  more  special  protection  in  the  execution  of  their  office, 
than  private  persons.  Co.  P.  C.p.  56.  9  Co.  Rep.  68.  b.  Mackally^s 
case. 

But  if  the  prisoner  makes  no  resistance,  but  flies,  yet  the  officer 
either  for  fear  that  he,  or  some  other  of  his  party  will  rescue  the 
prisoner,  strikes  the  prisoner,  whereof  he  dies,  this  is  murder,  for 
here  was  no  assault  first  made  by  the  prisoner,  and  so  it  cannot  be 
se  dejendendo  in  the  officer.[5] 

And  here  is  the  diff^erence  between  civil  actions  and  felonies. 

If  a  man  be  in  danger  of  arrest  by  a  Capias  in  debt  or  trespass, 
and  he  flies,  and  the  bailifl' kills  him,  it  is  murder;[6]  but  if  a  felon 
flies,  and  he  cannot  be  otherwise  taken,  if  he  be  killed,  it  is  no  felony, 


[3]  State  V.  Wells,  1  Cuxe,  424.  U  S.  v.  Trovers,  2  Wlieeler's  C.  C.  498.  507.  Hay. 
don  V.  The  State,  4  Blackford,  547.  People  v.  Gurretson,  2  Wheeler's  C.  C.  348.  People 
V,  Anderson,  idem,  408. 

[4|  3  Inst.  56.    1  Hawk.  c.  28.  s.  11.  c.  29.  16.    MS.  Sum.  36,  37.     Foster,  321. 

[5]  So  long  as  a  party,  liable  to  arrest,  endeavours  peaceably  to  avoid  it  he  may  not 
be  killed;  but  whenever,  by  his  conduct,  he  puts  in  jeopardy  the  life  of  any  attempting 
to  arrest  him,  he  may  be  killed,  and  the  act  will  be  excusable.  State  v.  Anderson,  1 
HiWs  S.  C.  R.  327.  See  The  State  v.  Rutherford,  1  Hawks.  457.  Selfridge's  Trial, 
160.  R.  v.  Haworth,  1  Moody,  C.  C.  207.  R.  v.  Willia7ns,  ibid.  387.  R.  v.  Langden, 
R.  Ss  R.  228. 

It  has  been  said  that  perhaps  the  killing  of  dangerous  rioters  may  be  justified  by  any 
private  persons  who  cannot  otherwise  suppress  thern,  or  defend  themselves  from  them, 
inasmuch  as  every  private  person  seems  to  be  authorized  by  the  law  to  arm  himself 
for  the  preservation  of  the  peace.  1  Hawk.  P.  C.  c.  28.  s.  14,  and  see  Foster,  272. 
It  was  so  resolved  by  all  the  judges  in  Easter  Term,  39  Eliz.  though  they  thought  it 
more  discreet  for  every  one  in  such  a  case  to  attend  and  assist  the  king's  officers  in  pre- 
serving the  peace.  And  certainly,  if  private  persons  interfere  to  suppress  a  riot  they 
must  give  notice  of  their  intention.  See  Rex  v.  Finney,  5  C.  t^  P.  254.  Reg.  v.  Neale, 
9  C.  c^  P.  431.  The  charge  of  Tindai.,  C.  J.  to  the  Bristol  Grand  Jury,  1832.  5  C.  &  P. 
261,  and  charge  of  King,  P.  to  the  Philadelphia  Grand  Jury,  1844.  4  Penn.  Law  J.  29. 
The  latter  is  a  practical  and  accurate  statement  of  the  law  on  this  subject. 

[6]  1  Roll.  R.  189.  Foster,  271.  Rex  v.  Browning,  1  East,  P.  C.  312.  Rex  v.  Borth. 
wick,  1  Doug.  207.  M.  S.  Sum.  37.  If  the  warrant  was  irregular  and  void,  the  killing 
would  be  only  manslaughter.  Rex  v.  Stockley,  1  East,  P.  C  210.  Hoiisia  v.  Barrow, 
6  T.  R.  122,    R.  v.  Winnock,  8  T.  R.  454.    R.  v.  Hood,  Moody,  C.  C.  281. 


PIISTORIA  PLACITORUM  CORONA.  481 

and  in  that  case  the  officer  so  killing  forfeits  nothing,  but  the  person 
so  assaulted  and  killed  forfeits  his  goods. 

2.  In  relation  to  the  person  killed. 

If  a  thief  assaults  a  true  man  either  abroad  or  in  his  house  to  rob 
or  kill  him,  the  true  man  is  not  bound  to  give  back,  but  may  kill  the 
assailant,  and  it  is  not  felony.     Co.  P.  C.  p.  56. [7] 

3.  In  respect  of  the  manner  of  the  assault. 

If  ^.  assault  B.  so  fiercely,  that  B.  cannot  save  his  life  [482] 
if  he  give  back,  or  if  in  the  assault  B.  fall  to  tlie  ground, 
whereby  he  cannot  fly,  in  such  case  if  ^.  kill  ^.  it  is  se  defendendo, 
Co.  P.  C.p.56.  but  now  here  will  be  occasion  to  resume  the  former 
debate,  where  the  first  assailer  may  be  said  to  kill  the  assailed  se 
uefendendo.{S'] 

If  A.  assault  B.  and  B.  thereupon  re-assault  ji.  and  A.  really 
flies  to  avoid  the  assault  of  B.  who  pursues  him,  and  then  A.  being 
driven  to  the  wall  turns  again  and  kills  B.  it  seems  this  may  be  se 
defendendo,  as  hath  been  said  ;  for  it  appears  de  facto,  that  ji.  fled 
from  the  assault  of  ^.  till  he  could  fly  no  farther. 

But  if  A.  assaults  B.  first,  and  upon  that  assault  B.  re-assaults  Ji. 
and  that  so  fiercely,  that  A.  cannot  retreat  to  the  wall  or  other  noti 
ultra  without  danger  of  his  life,  nay,  tho  j1.  falls  upon  the  ground 
upon  the  assault  of  B.  and  then  kills  B.  this  shall  not  be  interpreted 


[7]  Foster,  273.  Kel.  126. 128.  1  Hawk.  P.  C.  c.  28.  s.  21.  24,  When  a  known  felony 
is  attempted  upon  the  person,  be  it  to  rob  or  murder,  the  party  assailed  may  repel  force 
by  force;  and  even  his  servant  attendant  on  him,  or  any  other  person  present,  may  inter- 
pose for  preventingf  mischief,  and  if  death  ensue,  the  party  so  interposingf  will  be  justi- 
fied. 1  East,  P.  C.271.  Com.  v.  Riley,  Thacher's  C.  C.  471.  Selfridge's  case,  160. 
Commonwealth  v.  Daily,  3  Pa.  L.  I.  153. 

The  danger  must  be  actual  and  urgent,  U.  S.  v,  Vigol,  2  Dallas,  346.  No  contingent 
necessity  will  avail;  and  when  the  pretended  necessity  exists  in  tlie,  as  yet,  unexecuted 
machinations  of  another,  it  forms  no  defence.  People  v,  McLeod,  1  Hill,  377.  State  v. 
Morgan,  3  Iredell,  186. 

In  Tennessee  it  has  been  ruled,  that  if  a  man,  though  in  no  danger  of  serious  bodily 
harm,  through  fear,  alarm,  or  cowardice,  kill  another  under  the  impression  that  great 
bodily  injury  is  about  to  be  inflicted  on  him,  it  is  a  case  of  homicide  in  self-defence. 
Granger  v.  The  State,  5  Yerger,  459. 

In  North  Carolina,  the  safer  and  better  doctrine  is,  that  the  belief  that  a  person  designs 
to  kill  one,  will  not  reduce  the  killing  him  below  murder,  unless  he  is  making  some  attempt 
to  execute  his  design,  or,  at  least,  is  in  an  apparent  situation  to  do  so,  and  thereby  induces 
the  reasonable  belief  that  he  intends  to  do  so  immediately.   State  v.  Green,  4  Iredell,  409. 

The  killing  of  a  man  on  the  highway  is  not  justifiable  homicide,  unless  there  was  an 
intention  on  the  part  of  the  person  killed,  to  rob  or  murder,  or  do  some  dreadful  bodily 
injury  to  the  person  killing;  or,  in  other  words,  the  conduct  of  the  party  must  be  such  as 
to  render  it  necessary  on  the  part  of  the  party  killing,  to  do  the  act  in  self-defence.  Reg. 
V.  Bull,  9  Car.  Sf  P.  22, 

A  well-grounded  belief  that  a  felony  is  about  to  be  perpetrated,  will  extenuate  a 
homicide  committed  in  prevention  of  it,  though  the  defendant  be  but  a  private  citizen; 
but  not  a  homicide  committed  in  pursuit,  unless  special  authority  be  given.  State  v, 
Rutherford,  1  Hawks.  457.  Selfridge's  Trial,  160.  R.  v.  Haworlh,  1  Mood.  C.  C.  207. 
R.  V.  Williams,  ibid,  387.     R.  v,  Largden,  R.  Sf  R.  228, 

But  the  slayer,  in  such  cases,  must  not  only -show  that  a  homicide  was  actually  com- 
mitted, but  tliiit  he  avowed  his  object,  and  that  the  felon  refused  to  submit,  and  that  the 
killing  was  necessary  to  make  the  arrest.     State  v.  Roane,  2  Dtv.  58. 

[8]  4  Bl.  Com.  185.    3  Inst.  56,    1  Hawk.  P.  C.  c.  29.  s.  14. 


482  HISTORIA  PLACITORUM  CORONA. 

to  be  se  defendendo,{c)  but  to  be  murder,  or  simple  homicide,  accord- 
ing to  the  circiimstatices  of  the  case,  for  otherwise  we  should  have 
all  cases  of  murders  or  manslaughters  by  way  of  interpretation  turned 
into  se  defendendo. 

The  party  assaulted  indeed  shall,  by  the  favourable  interpretation 
of  the  law,  liave  the  advantage  of  this  necessity  to  be  interpreted  as 
a  fiight(^)  to  give  him  the  advantage  of  se  defendendo,  when  the 
necessity  put  upon  him  by  the  assailant  makes  his  flight  impossible ; 
but  he  that  first  assaulted  hath  done  the  first  wrong,  and  brought 
upon  himself  this  necessity,  and  shall  not  have  advantage  of  his  own 
wrong  to  gain  the  favourable  interpretation  of  the  law,  that  that 
necessity,  which  he  brought  upon  liimself,  should,  by  way  of  inter- 
pretation, be  accounted  a  flight  to  save  himself  from  the  guilt  of  mur- 
der or  manslaughter.[9] 

If./?,  after  the  assault,  had  really  and  bond  fide  fled  from 
[|483]  B.  or  that  they  had  been  parted  by  by-standers,  that  had 
given  a  kind  of  interruption  to  the  affray,  and  a  declining  of 
any  farther  aftray  by  B.  and  therefore  when  B.  pursues  him  to  kill  him, 
and  t^.  after  his  flight,  upon  necessity  of  saving  his  life,  kills  B.  this 
is  apparent  to  be  se  defendendo;  but  when  it  is  done  altogether  with- 
out any  interval  of  flight  or  parting,  and  B.  that  was  first  assaulted, 
gains  the  present  advantage  by  his  strength,  courage  or  fortune,  to 
preclude  the  flight  of./?,  and  then  A.  kills  him,  this  seems  to  be  man- 
slaughter, and  not  se  defendendo. 

And  it  must  be  observed,  that  the  flight  to  gain  the  advantage  of 
se  defendendo  to  the  party  killing,  must  not  be  a  feigned  flight,  or  a 
flight  to  gain  advantage  of  breath,  or  opportunity  to  fall  on  a  fresh, 
as  fighting  cocks  retire  to  gain  advantage,  but  it  must  be  a  flight  from 
the  danger,  as  far  as  the  party  can,  either  by  reason  of  some  wall, 
ditch,  company,  or  as  the  fierceness  of  the  assailant  will  permit.[10] 

In  Fleet  street  A.  and  B.  were  walking  together,  B.  gave  some 
provoking  language  to  Jl.  who  thereupon  gave  B.  a  box  on  the  ear, 
they  closed;  B.  was  thrown  down, and  his  arm  broken, he  runs  to  his 
brother's  house  presently,  which  was  hard  by,  C  his  brother,  taking 
the  alarm,  came  out  with  his  sword  drawn  and  made  towards  Jl. 
who  retreated  ten  or  twelve  yards,  C.  pursued  him,  Ji.  drew  his 
sword  and  made  a  pass  at  C  and  killed  him;  A.  being  indicted  at 

(c)  Because  his  fall  not  being  voluntary,  as  a  flight  is,  it  does  not  appear,  that  he 
declined  fighting,  so  that  the  party  first  assaulted  cannot  safely  quit  the  advantage  he 
has  got. 

(t?j  Not  that  the  law  esteems  this  necessity  to  be  a  flight,  but  the  party  not  having 
opportunity  of  flying,  the  law  does  not  require  it  of  him;  but  excuses  him  in  the  same 
manner,  as  if  he  had  fled. 

[9]  I  Ihivok.  c.  20.  s.  17.  On  this  subject  jMr.  East  says:  "  I  think  there  is  great  diffi- 
culty in  applying  the  distinction  taken  by  Lord  Hale  and  Hawkins  against  him  who 
makes  the  first  assault,  to  the  case  of  mutual  combat  by  consent,  though  upon  a  sudden 
occasion,  when  neither  of  the  parties  makes  an  attack  till  the  other  is  prepared;  because 
in  these  cases  it  maticrs  not  who  gives  the  first  blow;  it  forms  no  ingredient  in  the 
merits  of  the  question."  1  East,  P.  C.  281-2. 

[10]  Foster,  277.  4  Bl.  Com.  1B5. 


HISTORIA  PLACITORUM  CORONiE.  433 

Newgate  sessions  for  murder,  the  court  directed  the  jury  upon  the 
trial  to  find  this  manslaughter,  not  murder,  because  upon  a  sudden 
falling  out;  not  se  defendendo,  partly  because  ./?.  made  the  first  breach 
of  the  peace  by  striking  B.  and  partly  because,  unless  he  had  fled  as 
far  as  might  be,  it  could  not,  by  way  of  interpretation,  be  said  to  be 
in  his  own  defense:  and  it  appeared  plainly  upon  the  evidence,  that 
he  might  have  retreated  out  of  danger,  and  his  stepping  back  was 
rather  to  have  an  opportunity  to  draw  his  sword,  and  with  more 
advantage  to  come  upon  C.  than  to  avoid  him;  and  accordingly,  at 
last,  it  was  found  manslaughter  1671,  at  Newgaie-lll] 

II.  I  come  to  the  second  consideration,  namely,  what  the 
offense  is,  if  a  man  kill  another  in  the  necessary  saving  of  [  484  ] 
the  hfe  of  a  man  assaulted  by  the  party  slain. 

-  ^.  assaults  the  master,  who  flies  as  far  as  he  can  to  avoid  death, 
the  servant  kills  Ji.  in  defense  of  his  master;  this  is  homicide  defen- 
dendo of  the  master,  and  the  servant  shall  have  a  pardon  of  course, 
21  H.l.  39.  a.  but  if  the  master  had- not  been  driven  to  that  extre- 
mity, it  had  been  manslaughter  at  large  in  the  servant,  if  he  had  no 
precedent  malice  in  him.  Plowd.  Com.  100. 

The  like  law  had  been  for  a  master  killing  in  the  necessary  defense 
of  his  servant,  the  husband  in  the  defense  of  the  wife,  the  wife  of  the 
husband,  the  child  of  the  parent,  or  the  parent  of  the  child,  for  the 
act  of  the  assistant  shall  have  the  same  construction  in  such  cases,  as 
the  act  of  the  party  assisted  should  have  had,  if  it  had  been  done  by 
'himself,  for  they  are  in  a  mutual  relation  one  to  another.[12] 

\i  Ji.  and  B.  and  C.  be  of  a  company  together,  and  walking  in  the 
field  C.  assaults  B.  who  flies,  C.  pursues  him,  and  is  in  danger  to  kill 
him,  unless  present  help,  Ji.  thereupon  kills  C.  in  defense  of  the  hfe 
of  B.  it  seems  that  in  this  case  of  such  an  inevitable  danger  of  the  life 
of  B.  this  occision  of  C.  by  Ji.  is  in  nature  of  ^e  defendendo,  but  then 
it  must  appear  plainly  by  the  circumstances  of  the  case,  as  the 
manner  of  the  assault,  the  weapon  with  which  C.  made  the  assault, 
^•c.  that  the  imminent  danger  of  the  life  of  B.  be  [apparent  and  evi- 
dent.[13] 

And  the  reason  seems  to  be,  because  every  man  is  bound  to  use 
all  possible  lawful  means  to  prevent  a  felony,  as  well  as  to  take  the 
felon,  and  if  he  doth  not,  he  is  liable  to  a  fine  and  imprisonment, 
therefore  if  B.  and  C,  be  at  strife,  »/5,  a  by-stander,  is  to  use  all  lawful 
means  that  he  may,  without  hazard  of  himself,  to  part  them;  and  the 

[11]  Before  a  person  can  avail  himself  of  the  defence,  that  he  used  a  weapon  in  defence 
of  his  life,  he  must  satisfy  the  jury  that  that  defence  was  necessary  ;  that  he  did  all  he 
could  to  avoid  it ;  and  that  it  was  necessary  1o  protect  his  own  life,  or  to  protect  himself 
from  such  serious  bodily  harm,  as  would  give  him  a  reasonable  apprehension  that  his 
life  was  in  immediate  danger.  If  he  used  the  weapon,  having  no  other  means  of  resist- 
ance, and  no  means  of  escape,  in  such  case,  if  he  retreated  as  far  as  he  could,  he  would 
be  justified.     Reg.  v.  Smith,  8  C.  4-  P.  160.     See  Reg.  v.  Bull,  9  C.  ^  P.  22. 

[12]  4  Bl.  Com.  182-184.   1  J?uss.  on  Cr.  542.  Foster,  274. 

[13]  This  rule  does  not  extend  to  felonies  without  force,  nor  to  misdemeanors  of  any 
kind.  I  Hawk.  P.  C.  c.28.  s.  23.  4  Bl.  Com.  180.  1  East,  P.  C.  290. 
VOL.  I. — 43 


484  HISTORIA  PLACITORUM  CORONA. 

very  relation  of  acquaintance,  and  mntnal  society  between  A.  B. 
and  C.  seems  to  excuse  the  fact  of  Jl.  in  the  necessary  safeguard  of 
the  \\{q  oi  B.  from  the  crime  of  simple  homicide;  tamen  quaere. 

If  Ji.  be  travelling,  and  B.  comes  to  rob  him,  if  C.  falls  into  the 
company,  he  may  kill  B.  in  defense  of  A.  and  therefore  much  more 
if  he  come  to  kill  him,  and  such  his  intent  be  apparent,  for 
\_  485]]  in  such  case  of  a  felony  attempted,  as  well  as  of  a  felony 
committed,  every  man  is  thus  far  an  officer,  that'at  least  his 
killing  of  the  attempter  in  case  of  necessity  puts  him  in  the  con- 
dition oi se  defendendo  in  defending  his  neighbour;  but  of  this  more 
hereafter. 

A.  makes  an  assault  upon  B.  a  woman  or  maid  with  intent  to 
ravish  her,  she  kills  him  in  the  attempt,  it  is  se  defendendo  because 
he  intended  to  commit  a  felony.   Bait.  cap.  98.  p.  250,[14] 

And  so  it  is  if  C.  the  husband  or  father  of  B.  had  killed  him  in 
the  attempt,  if  it  could  not  be  otherwise  prevented  ;  but  if  it  might 
be  otherwise  prevented,  it  is  manslaughter;  therefore  circumstances 
must  guide  in  that  case. [15] 

III.  I  come  to  consider,  what  the  offense  is  in  killing  him  that 
takes  the  goods,  or  doth  injury  to  the  house  or  possession  of 
another. 

And  herein  there  will  be  many  diversities,  as  first,  between  a 
trespassable  act  and  a  felonious  act,  and  between  felonious  acts  them- 
selves. 

If  J2.  pretending  a  title  to  the  goods  of  B.  takes  them  away 
from  B.  as  a  trespasser,  B.  may  justify  the  beating  of  A.  but  if  he 
beat  him  so  that  he  die,  it  is  neither  justifiable,  nor  within  the 
privilege  of  se  defendendo,  but  it  is  manslaughter.  Dalt.  cap.  98. 
jo.  251.[16]. 

Ji.  is  in  possession  of  the  house  of  B.  B.  endeavours  to  enter 
upon  him,  Jl.  can  neither  justify  the  assault  nor  beating  of  B.  for  B. 
had  the  right  of  entry  into  the  house,  but  if  A.  be  in  possession  of  a 
house,  and  B.  as  a  trespasser  enters  without  title  upon  him,  A.  may 
not  beat  him,  but  may  gently  lay  his  hands  upon  him  to  put  him 
out,  and  if  B.  resists  and  assaults  A.  then  A.  may  justify  the  beating 
of  him,  as  of  his  own  assault. 

But  li  A.  kills  him  in  defense  of  his  house,  it  is  neither  justifiable, 
nor  within  the  privilege  of  se  defendendo,  for  he  entered  only  as  a 
trespasser,  and  therefore  it  is  at  least  common  manslaughter:  this 
was  HarcourVs  case  Crumpt.  27.  a.  who  being  in  possession  of  a 
house  by  title,  as  it  seems,  A.  endeavoured  to  enter  and  shot  an 
arrow  at  them  within  tlie  house,  and  Harcourt  from  within 
[  486  ~\  shot  an  arrow  at  those  that  would  have  entered,  and  killed 
one  of  the  company,  this  was  ruled  manslaughter,  5  Eliz. 

[14]  M.  S.  Sum.  39. 

[15]  Foster,  274 ;  Handock  v.  Baker,  2  B.  Sf  P.  265. 

[16j  State  V.  Murgan,  3  Iredell,  186;  Vom.  v.  Drew,  4  Mass,  391;  Claxton  T.  2%< 
State,2  Humphrey,  181. 


HISTORIA  PLACITORUM  CORONA.  486 

and  it  was  not  se  defendendo,  because  there  was  no  danger  of  his 
life  from  them  without. 

But  if  ^i.  had  entered  into  the  house,  and  Harcourt  had  gently- 
laid  his  hands  upon  him  to  turn  him  out,  and  then  ^.  had  turned 
upon  him,  and  assaulted  him,  and  Harcourt  had  killed  him,  it  had 
been  ^e  defendendo^  and  so  it  had  been  if  J2.  had  entered  upon 
him,  and  assaulted  him  first,  tho  he  intended  not  to  kill  him,  yet  if 
Harcourt  had  thereupon  killed  •/?.  it  had  been  only  se  defendendo, 
and  not  manslaughter,  tho  the  entry  of  ^1.  was  not  with  intent  to 
murder  him,  but  only  as  a  trespasser  to  gain  the  possession,  3  E.  3. 
Coron.  305.  Cramp.  27  b.  and  it  seems  to  me  in  such  a  case  Har- 
conrt,  being  in  his  own  house,  need  not  fly  as  far  as  he  can,  as  in 
other  cases  of  se  defendendo,  for  he  hath  the  protection  of  his  house 
to  excuse  him  from  flying,  for  that  would  be  to  give  up  the  posses- 
sion of  his  house  to  his  adversary  by  his  flight. [17] 

A.  commits  adultery  with  B.  the  wife  of  C  who  comes  up  and 
takes  them  in  the  very  act,  and  with  a  staff"  kills  the  adulterer  upon 
the  place;  this  is  manslaughter,  and  neither  murder,  nor  under  the 
privilege  of  se  dejendendo:  but  if  J9.  had  been  taken  by  C.  in  the 
very  attempt  of  a  rape  upon  the  wife,  and  she  crying  out,  her  hus- 
band had  come  and  killed  Jl.  in  the  act  of  his  ravishment,  it  had 
been  within  the  privilege  of  se  defendendo,  because  it  was  a  felony; 
the  former  case  was  adjudged  manslaughter  by  the  court,  B.  R.  M. 
23  Car.  2.{d) 

Now  concerning  felonies,  as  there  is  a  difference  between  them 
and  trespasses,  so  there  is  a  difference  among  themselves  in  relation 
to  the  point  of  se  dejendendo. 

'If  a  man  come  to  take  my  goods  as  a  trespasser,  I  may  justify  the 
beating  of  him  in  defense  of  my  goods,  as  hath  been  said ;  but  if  I 
kill  him,  it  is  manslaughter. 

But  if  a  man  come  to  rob  me,  or  take  my  goods  as  a  felon,  and  in 

(rf)  Manning's  case,  Raym.  212. 

When  he  was  to  be  burnt  in  the  hand,  the  court  directed  it  to  be  done  gently,  because 
they  said  there  could  not  be  a  greater  provocation. 


[17]  As  the  killing  in  these  cases  is  only  justifiable  on  the  ground  of  necessity,  it  can- 
not be  justified  unless  all  other  convenient  means  of  preventing  the  violence  are  absent 
or  exhausted;  thus  a  person  set  to  watch  a  yard  or  garden,  is  not  justified  in  shooting' 
one  who  comes  into  it  in  the  night,  even  if  he  should  see  him  go  into  his  master's  hen- 
roost ;  for  he  ought  first  to  see  if  he  could  not  take  measures  for  his  apprehension ;  but 
if,  from  the  conduct  of  the  party,  he  has  fair  ground  for  believing  his  own  life  in  actual 
and  immediate  danger,  he  is  justified  in  shooting  him.  R.  v.  Scully,  1  C.  Sf  P.  319. 
Nor  is  a  person  justified  in  firing  a  pistol  on  every  forcible  intrusion  mto  his  house  at 
sight;  he  ought,  if  he  have  reasonable  opportunity,  to  endeavour  to  remove  him  without 
having  recourse  to  the  last  extremity.     Mead's  case,  1  Lew.  184. 

And  it  would  seem  that  in  no  case  is  a  mati  justified  in  intentionally  taking  away  the 
life  of  a  mere  trespasser,  his  own  life  not  being  in  jeopardy;  he  is  only  protected  from 
the  consequences  of  such  force  as  is  reasonably  necessary  to  turn  the  wrong-doer  out. 
A  kick  has  been  held  an  unjustifiable  mode  of  doing  so;  Child''s  case,  2  Lew,  214; 
throwing  a  stone  has  been  held  a  proper  mode.    HinchcUffe's  case,  1  Lew.  161. 


487  HISTORIA  PLACITORUM  CORONA.     . 

my  resistance  of  his  attempt  I  kill  him,  it  is  se  defendendo  at  least, 
and  in  some  cases  not  so  much. 

At  common  law,  if  a  thief  had  assaulted  a  man  to  rob  him,  and 
he  had  kild  the  thief  in  the  assault,  it  had  been  se  defendendo,  but 
yet  he  had  forfeited  his  goods,  as  some  have  thought,  1 1  Co.  Rep. 
d>^  h.  tho  other  books  be  to  the  contrary.    26  Jissiz.  32. 

But  if  Ji.  had  attempted  a  burglary  upon  the  house  of  B.  to  the 
intent  to  steal,  or  to  kill  him,  or  had  attempted  to  burn  the  house  of 
B.  MB.  or  any  of  his  servants,  or  any  within  his  house  had  shot  and 
kild  A.  this  had  not  been  so  much  as  felony,  nor  had  he  forfeited 
ought  for  it,  for  his  house  is  his  castle  of  defense,  and  therefore  he 
may  justify  assembling  persons  for  the  safe  guard  of  his  house.  21 
H.1.2,%  a.W  Co.  Rep.  82.  b.  5  Co.  Rep.  9\.b.  26  ^ssiz.  23.  S  E.  3. 
Coron.  330. 

But  otherwise  it  is,  as  hath  been  said,  in  case  of  a  trespassable  entry 
into  the  house  claiming  a  title,  and  not  to  commit  felony. 

But  now  by  the  statute  of  24  H.  8.  cap.  5.  "  If  any  person  attempt 
any  robbery  or  murder  of  any  person  in  or  near  any  common  high- 
way, cartway,  horseway,  or  footway,  or  in  their  mansion  houses,  or 
do  attempt  to  break  any  mansion-house  in  the  night-time,  and  shall 
happen  to  be  kild  by  any  person  or  persons,  &c.  (tho  a  lodger  or 
servant)  they  shall  upon  their  trial  be  acquitted  and  discharged  in 
like  manner,  as  if  he  had  been  acquitted  of  the  death  of  such  person, '^ 
JP.  15.  Car.  1.  Cooper's  case.(e) 

This  statute  was  to  remove  a  doubt,  and  was  declarative  and 
enacting,  and  puts  the  killing  of  a  robber  in  or  near  the  highway,  <§'c. 
in  the  same  condition  with  one,  that  intends  to  rob  or  murder  in  the 
dwelling-house,  and  exempts  both  from  forfeiture,  and  hath  settled 
the  doubt. 

And  upon  this  statute  it  was,  that  when  there  was  malice  between 
^.  and  B.  and  they  had  fought  several  times,  and  after  met  suddenly 
in  the  street  near  Ludgate,  and  Jl.  said  he  would  fight  him,  B. 
declined  it,  and  fled  to  the  wall,  and  called  others  to  witness  it,  and 
Jl.  pursued  him,  and  struck  him  first,  and  B.  in  his  own  defense  kild 
him,  he  was  acquit  from  any  forfeiture  by  the  statute  of  24  H.  8. 
cap.  5.  15  Eliz.  Cromp.  27.  b.  Copstori's  case:  but  upon 
[]  488  ]  this  statute  these  things  are  observable. 

1.  It  extends  not  to  the  case  of  a  bare  trespassable  entry 
into  a  house,  but  only  to  such  an  entry  or  attempt  as  is  intended  to  be 
for  murder  or  robbery,  <§'c.  or  some  such  felony,  and  therefore  the 
cases  of  trespasses,  either  in  houses  or  near  highways,  are  left  is 
before. 

2.  It  seerns,  that  it  extends  not  to  indemnify  the  killing  of  a  felon, 
.where  the  felony  is  not  accompanied  with  force,  for  it  speaks  of  rob- 
bery, therefore  the  killing  of  one  that  attempts  to  pick  my  pocket,  is 
not  within  the  act,  for  there  is  ^o  such  necessity ;  indeed,  if  any  felon, 
after  a  felony  committed,  doth  resist  those,  that  endeavour  to  appre- 

(e)  Cro.  Car.  544. 


HISTORIA  PLACITORUM  CORON.E.  488 

hend  him,  or  fly,  and  be  kild,  this  killing  is  no  felony,  but  that  is 
upon  another  account,  for  this  statute  hath  relation  only  to  killing 
before,  or  in  the  felony  committed,  not  «/?er.[lS] 

3.  It  speaks  only  of  breaking  the  house  in  the  night-time,  so  that 
it  seems  it  extends  not  to  a  breaking  the  house  in  the  day-time, 
imless  it  be  such  a  breaking,  as  imports,  with  it  apparent  robbery,  or 
an  intention,  or  attempt  thereof. 

4.  Tho  the  statute  speaks  not  of  burning  of  houses,  yet  he,  that 
attempts  the  wilful  burning  of  a  house,  and  is  kild  in  that  attempt,  is 
free  from  forfeiture,  without  the  aid  of  this  staute,  as  appears  26 
Jisaiz.  23. 

By  the  judicial  law,  Exod.  xxii.  2,  3.  "If  a  thief  be  found  break- 
ing up,  and  he  be  smitten  that  he  die,  no  blood  shall  be  shed  for  him, 
but  if  the  sun  be  risen  upon  him,  there  shall  blood  be  shed  for  him, 
for  he  should  make  restitution,  and  if  he  have  nothing,  he  shall  be 
sold  for  his  theft:"  and  by  the  Roman  law  of  the  twelve  tables, 
Fur  manifesto  fur  to  deprehensiis,  siaut,  cutn  facer  et  fur  turn. ,  nox 
esset,  aitt  inter-diu  se  telo,  cum  deprehenderetur,  defenderet,  im- 
pune  occideretur  :{f)  upon  the  latter  of  these  laws  the  civilians  and 
canonists  have  made  many  curious  d\s{\nci\ons,quas  vide  apudOovdiX- 
ruviam,  Tom.  I.  Par.  3,  de  homicidio  ad  defensionem  com- 
misso  ;{g)  and  upon  the  former  the  Jewish  Rabbles  have  [489] 
made  the  like,  quas  vide  apiid  Selden  de  jure  gentium. 

But  as  the  laws  of  several  nations,  in  relation  to  crimes  and  pun- 
ishments differ,  and  yet  may  be  excellently  fitted  to  the  exigencies 
and  conveniences  of  every  several  state,  so  the  laws  of  England 
are  excellently  fitted  in  this  and  most  other  matters  to  the  conve- 
niencies  of  the  English  government,  and  full  of  excellent  reason,  and 
therefore  I  shall  not  trouble  myself  about  other  laws  than  those  of 
England.{h) 

IV.  There  remains  yet  one  other  particular,  namely,  the  killing  a 
malefactor,  that  doth  not  yield  himself  to  justice  upon  pursuit. 

If  a  person  be  indicted  of  felony  and  flies,  or  being  arrested  by 
warrant  or  process  of  law  upon  such  indictment  escapes  and  flies, 
and  will  not  render  himself,  whereupon  the  officer  or  minister  cannot 
take  him  without  killing  of  him,  this  is  not  felony,  neither  shall  the 
killer  forfeit  his  goods,  or  be  driven  to  sue  forth  his  pardon,  but  upon 

(/)  ^^S'  ^*^'  IV.  tit.  2.  ad  leg.  Aquil.  I.  4.  §  1.  Agel.  Lib.  XI.  cap,  18.  vide  supra  cap. 
1.  p.  3  Sf  6. 

ig)  p.  561.  Edit.  Antwerp,  1614. 

{h)  By  the  common  law,  Qui  latronem  occide.rit  nocturnum  vel  diuturnum,  non  tene- 
titr,  si  aliter  periculum  evadere  non  possit,  tenetur  tamen,  si  possit.  Bract.  Lib.  111.  de 
corona,  fol.  15.5.  a. 

Vide  LL.  Withred.  Edit,  ^^^ilk.  p.  12.  LL.  Lim,  I.  16.  20,  21.  35.  LL.  Ethelslani, 
in.  LL.  Canuti,l.59. 


[18]  4  Bl.  Com.  180.  But,  says  Mr.  East,  if  one  pick  my  pocket,  and  I  cannot  otiier- 
wise  take  him  than  by  killings  him,  this  falls  under  the  general  rule  concerning  the 
arresting  of  felons.  1  East,  P.  C.  273. 


489  HISTORIA  PLACITORUM  CORONA. 

his  arraignment  shall  plead  720/  gidlly.  and  accordingly  it  ought  to 
be  found  by  the  jury.  3  E.  3.  Coron.  288. 

!  But  if  he  may  be  taken  without  such  severity,  it  is  at  least  man- 
slaughter in  him,  that  kills  him,  therefore  the  jury  is  to  inquire,  whe- 
ther it  were  done  of  necessity  or  not.  22  *dssiz.  55  Stamf.  P.  C. 
Lib.  I.  cap.5.ful.  13.  b. 

And  the  same  law  it  is,  if  »^.  commits  felony  and  flies,  or  resists 
the  people,  that  come  to  apprehend  him,  so  that  he  cannot  be  taken 
without  killing  him,  such  killing  is  not  felony,  nor  does  the  person, 
that  did  it,  forfeit  any  thing,  tho  J3.  were  not  indicted,  nor  the  per- 
son, that  did  it,  had  any  warrant  of  any  court  of  justice,  for  in  such 
case  the  law  makes  every  person  an  otiicer  to  apprehend  a  feloii. 
22  E.  3.  Coron.  261. 

And  the  same  law  it  is,  if  he  be  taken,  and  in  bringing  to  the  goal 
he  breaks  away,  and  the  people  of  the  vill  pursue  and  cannot  take 
him,  unless  they  kill  him,  those,  that  kill  him,  upon  their  arraign- 
ment shall  be  acquitted  of  the  felony,  but  yet  the  township 
[]490  ]  shall  be  amerced  for  the  escape,  and  the  person  kild  shall 
forfeit  his  goods  upon  the  flight  found.  3  E.  3.  Cor.  328.  340. 
and  by  some  it  hath  been  held  he  shall  forfeit  the  issues  of  his  lands, 
till  the  year  and  day  be  past.  3  E.  3.  Coron.  290. 

If  t/^.  be  suspected  by  B.  to  commit  a  felony,  but  in  truth  he  com- 
mitted none,  neither  is  indicted,  yet  upon  the  offer  to  arrest  him  by 
B.he  resists  or  flies,  whereby  B.  cannot  take  him  without  killing 
him,  and  B.  kill  him,  if  in  truth  there  were  no  felony  committed,  or 
B.  had  not  a  probable  cause  to  suspect  him,  this  killing  is  at  least 
manslaughter,  but  if  there  were  a  felony  committed,  and  B.  hath  cause 
to  suspect  t/?,  but  in  truth  »^.  is  not  guilty  of  the  fact,  tho  upon  this 
account  B.  may  justify  the  imprisonment  of  Ji.  yet  qustre  if  B. 
kill  Ji.  in  the  pursuit,  whether  this  will  excuse  him  from  man- 
slaughter. 

But  if  a  felony  be  committed,  but  not  by  A.  but  by  some  other, 
and  B.  hath  a  warrant  from  a  justice  of  peace  to  apprehend  A.  or 
that  a  hue  and  cry  comes  to  B.  the  constable  of  Z).  to  apprehend  Ji. 
who  endeavours  to  escape,  or  stands  in  resistance,  so  that  he  cannot 
be  taken  without  killing  him,  it  seems  the  killer  is  excused  from  fe- 
lony, tho  A.  were  not  indicted;  vide 'pro  hoc  3  E.  3.  Coron.  289.  and 
the  reason  is  because  he  is  bound  by  law  to  execute  his  warrant,  or 
pursue  the  party  upon  hue  and  cry  and  to  apprehend  him,  and  is  in- 
dictable for  a  contempt  if  he  doth  not,  and  so  it  differs  from  the  for- 
mer case,  for  no  man  is  bound  to  suspect  another,  but  it  is  the  act  of 
his  own  judgment,  and  so  he  is  merely  his  own  warrant, and  he  may 
not  adventure  so  far  as  the  death  of  the  party,  unless  he  be  sure  he 
was  the  off'ender,  tho  he  may  imprison  him,  for  thereupon  he  shall 
be  brought  to  his  trial;  scd  de  his  vide  Slamf.  P.  C.  Lib.  I.  cap.  5. 
Crompt.fol.  30. 

And  it  is  to  be  observed,  that  whether  the  party  rescues  himself 
after  he  is  taken,  and  ffy  or  resist,  or  whether  lie  ffy  or  resist  before 
his  taking,  and  be  kild  in  the  pursuit,  it  is  all  one,  the  killer  forfeits 


HISTORIA  PLACITORUM  CORONA.  491 

nothing;  but  the  person  kild  forfeits  his  good5?,  tho  he  were  kild  before 
attainder,  upon  an  inquisition  either  by  the  coroner,  or  petit  jury 
finding  his  flight.   3  E.  3.  Coron.  288.  328. 

By  the  statute  of  21  E.  1.  de  malefactoribns  in  pr/rcis,  if  a  parker, 
forester,  or  warrener,  find  any  trespassers  wandering  in  his  park, 
forest,  or  warren,  intending  to  do  damage  therein,  and  they  will  not 
yield  to  the  forester  after  hue  and  cry  made  to  stand  to  the  king's 
peace,  but  fly  or  defend  themselves,  whereupon  they  are  kild,  the 
parker,  forester,  or  warrener,  or  their  assistants  shall  not  lose  life  or 
limb  for  the  same,  but  shall  enjoy  the  king's  peace,  so  it  be  not  done 
upon  any  former  malice  or  evil  will;  but  to  make  good  such  justifi- 
cation by  a  parker,  forester,  or  warrener,  there  are  these  things  re- 
quisite: 1.  It  must  be  a  legal  forest,  park,  or  warren,  or  chace,  (for  a 
chase  includes  warren)  and  not  a  bare  warren,  park,  8,'c.  in  reputa- 
tion, for  if  a  man  inclose  a  piece  of  ground,  and  put  deer  or  conies 
in  it,  this  makes  it  not  a  park  or  warren  without  a  prescription  time 
out  of  mind,  or  the  king's  charter.  2.  If  a  man  have  a  park  within 
a  forest,  where  he  may  hunt,  and  the  forester  kills  the  purloin-man, 
or  his  servant  hunting  in  the  purloin,  this  doth  not  excuse  the  forester 
from  murder  or  manslaughter,  as  the  circumstances  of  the  case  are. 
Dyer  327.  a. 

A!id  note,  that  in  all  these  cases  of  homicide  by  necessity,  as  in 
pursuit  of  a  felon,  in  killing  him  that  assaults  to  rob,  or  comes  to  burn 
or  break  a  house,  or  the  like,  which  are  in  themselves  no -felony,  the 
matter  may  be  specially  presented  by  the  grand  inquest,  (quod  vide 
3  E.  3.  Coron.  305.  289.  and  several  other  places,)  or  by  the  coro- 
ner's inquest.  And  thus  it  was  done  in  Holme's  case,  26  EUz. 
Crompt.  28.  and  in  the  case  of  a  servant  of  justice  Croke,  who  com- 
ing with  the  judge  out  of  the  circuit  was  assaulted  in  the  highway, 
and  he  kild  the  assailant,  and  the  matter  presently  specially  found 
by  the  coroner's  inquest,  whereby  he  was  discharged  by  the  statute 
of  24  H.  8.  cap.  5.  and  in  these  cases  upon  this  special  presentment 
the  party  shall  be  presently  discharged  without  being  put  to  plead, 
but  then  this  acquittal  by  preserUment  is  no  final  discharge,  for  he 
may  be  indicted  and  arraigned  again  afterwards,  if  the  matter  of  the 
former  indictment  be  false  ;  but  if  in  such  a  case  the  present- 
ment of  the  grand  inquest  or  coroner's  inquest  be  simply  of  [  492  ~\ 
murder  or  manslaughter,  and  ther^ipon  he  is  arraigned  and 
tried,  and  this  special  matter  given  in  evidence,  he  shall  be  acquitted 
thereupon,  for  upon  these  special  matters  proved  in  evidence,  he  is 
not  guilty,  for  it  is  no  felony,  and  this  acquittal  is  a  perpetual  dis- 
charge and  bar  against  any  other  indictment  for  the  same  death; 
therefore  this  latter  way  is  more  advantageous  in  the  conclusion  for 
the  party,  than  a  special  presentment.  Cromp.  fol.  28.  Holme's 
case.  [19] 

[19]  Lord  Bacon  says,  "if  divers  be  in  danger  of  drovvninir,  by  the  casting  away  of  some 
boat,  or  barque,  and  one  of  them  get  to  some  plank,  or  on  the  boat's  side  to  keep  iiimself 


492  HISTO^IA  PLACITORUM  CORONA. 

above  water,  and  another  to  save  his  life  thrust  him  from  it,  whereby  he  is  drowned; 
tiiis  is  neither  se  defendendo,  nor  by  misadventure,  but  justifiable."     Max.  Reg.  V.  • 

Later  writers  speak  of  this  as  homicide  se  defendendo. 

The  only  case  directly  involvinjr  this  doctrine  is  that  of  U.  S.  v.  Holmes,  C.  C.  U.  S. 
for  Eastern  District,  of  Penn.,  March,  1842 — an  indictment  for  manslaughter.  The  defen- 
dant was  a  mariner,  and  tlie  deceased  a  passenger  in  a  ship  wrecked  and  abandoned  at 
sea ;  ihe  crew  and  passengers  embarking  in  boats,  and  witiiin  twenty-four  hours  after  the 
abandonment  the  danger  of  destruction  by  tempest  being  imminent,  the  prisoner,  together 
with  the  remaining  sailors,  proceeded  to  throw  overboard  tliose  passengers  whose  remo- 
val seemed  necessary  for  the  common  safety,  among  whom  was  the  deceased.  Relief 
shortly  after  came;  but  the  evidence  conflicted  as  to  whctiier  the  boat  could  have  lield 
out  in  its  original  crowded  state  even  during  that  short  period.  The  question,  therefore, 
whether,  with  no  prospect  of  aid,  acting  under  the  circumstances  which  surrounded  the 
defendant  at  the  time  the  act  was  committed,  such  necessity  existed  as  would  justify  the 
homicide,  was  one  of  great  doubt.  But  a  new  principle  was  introduced  into  the  case  by 
Judge  Baldwin,  who  presided.  Holding,  that  in  such  an  emergency,  there  was  no  mari- 
time skill  required  which  would  make  the  presence  of  a  sailor  of  more  value  than  that  of 
a  passenger,  he  maintained,  that  in  such  case,  it  being  the  stipulated  duty  of  the  sailor 
to  preserve  the  passenger's  life  at  all  hazards,  if  a  necessity  arose  in  which  the  life 
of  one  or  the  other  must  be  lost,  the  life  of  the  passenger  must  be  preferred.  If,  on 
the  other  hand,  the  crew  was  necessary,  in  its  full  force,  for  the  management  of  the 
vessel,  the  first  reduction  to  be  made  ought  to  take  place  from  among  the  passen. 
gers.  But  under  all  circumstances,  it  was  held,  the  proper  method  of  determining  who 
was  to  be  the  first  victim  out  of  the  particular  class,  was  by  ballot.  The  defendant, 
under  the  charge  of  the  court,  was  convicted.     U,  S.  v.  Holmes,  Pamphlet,  Phila.,  1842. 

Sir  William  Russell  observes,  that  if  the  commission  of  treason  may  be  extenuated  by 
the  fear  of  present  death,  and  while  the  party  is  under  actual  compulsion,  (I  East,  P.  C. 
70.)  there  seems  to  be  no  reason  why  homicide  may  not  also  be  mitigated  upon  the  like 
consideration,  of  human  infirmity;  though  in  case  the  party  might  have  recourse  to  the 
law  for  his  protection  from  the  threats  used  against  him,  his  fears  will  certainly  furnish 
no  excuse  for*committing  the  murder.  1  East,  P.  C.  294.  It  must  further  be  observed, 
that  as  the  excuse  of  selt-defence  is  founded  on  necessity,  it  can,  in  no  case,  extend  be- 
yotid  the  actual  continuance  of  that  necessity  by  whicli  alone  it  is  warranted;  1  East, 
P.  C.  293.  for  if  a  person  assaulted  does  not  fall  upon  the  aggressor,  till  the  affray  is 
over,  or  when  he  is  running  away,  this  is  revenge,  and  not  defence.  4  BL  Com.  293. 
I  Russ.  on  Cr.  665.     See  Foster,  271.  277.  318. 


CHAPTER  XLI. 

CONCERNING     THE     FORFEITURE    OF    HIM,    THAT     KILLS    IN    HIS    OWN 
DEFENSE,    OR    PER    INFORTUNIUM. 

If  a  man  kill  another  by  misfortune,  yet  he  sliall  forfeit  his  goods 
in  strictness  of  law,  in  respect  o^  the  great  favour  the  law  hath  to 
the  life  of  a  man,  and  to  the  end  that  men  should  use  all  care,  dili- 
gence and  circumspection  in  all  they  do,  that  no  such  hurt  ensue  by 
their  actions. 

But  if  the  occision  or  killing  can  by  no  means  be  attributed  to  the 
act  of  the  person,  but  to  the  act  of  him,  that  is  kild,  there  it  seems, 
llio  the  instrument  of  the  death  is  forfeited  as  a  deodand,  there  follows 
no  forfeiture  of  the  goods  of  the  person  :  for  instance. 

If  ^.  shoots  at  rovers,  as  he  may  lawfully  do,  if  B.  after  the 
arrow  is  delivered  runs  into  the  place,  where  the  arrow  is  to  fall,  of 
his  own  accord,  and  so  is  kild,  this  seems  to  be  such  an  iiiforliiniuni, 
that  affects  not  */l.  with  the  loss  of  goods,  for  it  was  not  his  act  that 


HISTORIA  PLACITORUM  CORONtE.  492 

contributed  to  the  death  of  B.  but  the  wilful  or  improvident  act  of 
B.  himself;  qunere. 

If  Jl.  assaults  B.  and  B,  in  his  own  defense  kills  %8..  yet  [  493  ] 
B.  forfeits  his  goods. 

If  the  coroner's  inquest  find  the  killing  specially  se.  defendendo, 
yet  the  court  shall  arraign  him,  and  try  him,  whether  it  were  se 
defendendo,  before  he  shall  have  his  pardon  of  course.  4  H.l.l  <§•  2. 

But  if  B.  having  a  pitch-fork  in  his  hand,  ^.  assaults  B.  so 
fiercely,  that  he  runs  upon  the  pitch-fork  of  ^.,  B.  offering  no  thrust 
at  all  against  t/?.  (tho  this  be  a  very  difficult  matter  of  fact  to  sup- 
pose, yet  if  the  fact  be  supposed  to  be  so)  it  seems  B.  forfeits  no 
goods,  because  it  was  the  act  of  ^.  himself,  and  some  have  said 
rather,  that  in  that  case  Jl.  is  felo  de  se,  and  forfeits  his  goods,  de 
quo  supra,  44  E.  3.  44.  Coron.  94.  tho  3  E.  3.  Coron.  286.  saith  his 
goods  are  forfeit  in  that  case. 

But  where  the  killing  of  a  man  in  his  defense  is  in  the  law  no 
felony,  but  the  party  upon  his  arraignment  upon  the  special  matter 
is  to  be  found  or  judged  simply  not  guilty,  there  is  no  forfeiture,  but 
the  party  ought  to  be  absolutely  acquitted,  unless  he  fled,  and  it  be 
found,  that  fugam  fecit,  for  that  is  a  distinct  forfeiture,  altho  the 
party  be  not  guilty  of  the  fact,  and  therefore  always  the  jury  is 
charged  to  inquire,  whether  the  prisoner  be  guilty  or  not  guilty,  and 
if  not  guilty,  whether  he  fled  for  the  same,  and  if  he  fled,  then  to 
inquire  also  of  his  goods  and  chatties. 

And  the  cases,  where  the  prisoner  is  not  to  forfeit  any  goods  or 
chatties,  but  is  to  be  absolutely  acquitted,  if  he  kills  in  his  own  de- 
fense, are  before  remembered,  and  I  here  recollect  them. 

1.  He  that  kills  a  thief,  that  attempts  to  rob  him. 

2.  He  that  kills  a  person,  that  attempts  to  rob  or  kill  him  m  or 
near  the  highway,  or  in  the  mansion  of  the  killer,  by  the  statute  of 
24  H.  8.  cap.  5.  and  this,  tho  he  hath  not  yet  actually  robbed.  3^3. 
Coro7i.  330. 

3.  He  that  kills  a  person,  that  attempts  wilfully  to  fire  his  house, 
or  to  commit  burglary,  tho  he  hath  not  actually  broken  or  fired  the 
house.  26  Jissiz.  23.  29  t.dssiz.  23.  if  he  came  with  that  purpose. 

4.  An  officer  or  bailiff,  that  in  execution  of  his  office  kills 

a  person,  that  assaults  him,  tho  the  officer  gives  not  back  [494]] 

to  the  wall,  for  the  officer  is  under  the  protection  of  the 

law,  and  the  books  tell  us  it  is  not  felony  in  such  case.   Co.  P.  C.  p.  65. 

5.  The  same  law  is  of  a  constable,  that  commands  the  king's  peace 
in  an  affray,  and  is  resisted. 

6.  He  that  kills  a  felon,  that  resists,  ox  justiciari  se  non  permit- 
tit,  and  the  like  of  a  constable  or  watchman,  that  is  charged  to  take 
a  person  charged  with  felony,  or  attempts  to  take  him  upon  hue  and 
cry,  if  the  person  so  charged  resist  or  fly,  and  cannot  be  otherwise 
taken,  tho  perchance  he  be  iiuiocent,  for  the  reason  before  given,  and 
this  either  before  or  after  the  arrest. 

7.  If  there  be  a  great  riot,  or  rebellious  assembly,  how  far  the 


494  HISTORIA  PLACITORUM  CORONA. 

killing  of  such  persons  in  suppressing  of  them  is  criminal  is  to  be 
seen. 

By  the  statute  1  Mar.  cap.  1 2.  "  If  any  persons  to  the  number  of 
twelve  or  more  shall  intend,  practise,  or  put  in  ure  to  overthrow  pales, 
hedges,  ditches,  or  inclosures  of  parks  or  other  grounds,  banks  of 
fish-ponds,  conduit-heads, or  pipes,  or  to  pull  down  dove-cotes, barns, 
houses,  mills,  or  burn  stacks  of  corn,  or  abate  rents  or  price  of  victual 
or  corn,  and  being  required  by  the  justices  of  peace,  sheriff  of  the 
county,  mayors,  bailitfs,  or  head  officers  of  cities,  by  proclamation  in 
the  queen's  name  to  retire  to  their  homes,  shall  remain  together  one 
hour  after  such  proclamation,  or  shall  put  in  ure  such  things,  they 
shall  be  adjudged  felons. 

"And  if  any  persons  above  the  number  of  two  shall  unlawfully 
assemble  to  put  in  ure  the  things  aforesaid,  that  it  shall  be  lawful 
for  the  sheriff,  justices  of  peace,  mayors,  bailiffs,  and  every  other 
person  having  commission  from  the  queen  to  raise  force  in  manner 
of  war,  to  be  arrayed  to  suppress  and  apprehend  the  rioters,  and  if 
the  persons  so  unlawfully  assembled  after  command  and  request  by 
proclamation  shall  continue  together,  and  not  return  to  their  habi- 
tations, and  if  any  of  them  happen  to  be  kild,  maimed  or  hurt  in  or 
about  the  suppressing  or  taking  them,  the  sheriff,  justice, 
\_  495  ~\  mayor,  SfC.  and  their  assistants,  shall  be  discharged  and 
unpunishable  for  the  same  against  the  queen  and  all  other:" 
this  act  was  continued  by  the  statute  of  1  Eliz.  cap.  16.  during  her 
life.(«) 

And  it  seems,  as  to  this  manner  of  killing  rioters,  that  resist  the 
ministers  of  justice  in  their  apprehending,  it  is  no  other  but  what 
the  common  law  allows,  or  at  least  what  the  statute  of  13  H.  4. 
cap.  7.  implicitly  allows  to  two  justices  of  the  peace,  with  the 
sheriff  or  under-sheriff  of  the  county,  by  giving  them  power  to 
raise  the  posse  comitalics,  if  need  be,  and  to  arrest  the  rioters,  and 
they  are  under  the  penalty  of  100/.  if  they  neglect  their  duty  hereim 

And  with  this  agrees  Mr.  Dalton,  cap.  46.  /;.  115.,  (b)  cap  98. 
p.  249. ,(c)  and  Crompt.  de  Pace  62.  b.  "  Nota,  que  viscount  &  jus- 
tices de  peace  point  prendre  tants  des  homes  in  barneys,  quant  sont 
necessary  &  guns  &c.  &  tuer  les  rioters,  sils  ne  voilent  eux  rendre, 
come  fuit  pris  in  case  de  Drayton  Basset,  car  le  statute  13  //".  4. 
cap.  7.  parle,  quils  eux  arrestant,  &  si  les  justices  ou  ascuns  de  leuir 
company  tue  ascun  des  rioters,  qe  ne  voil  render  nest  offence  in  lui, 
come  fuit  auxi  prise  in  ledit  case  de  Drayton  Basset ;^\d)  and  note, 
that  tho  the  statute  of  1  Eliz.  was  then  in  force,  yet  that  was  not  a 
case  within  that  statute,  nor  depending  on  it. 

And  it  seems  the  same  law  is  for  the  constable  of  a  vill  in  case  a 
riot  happens  within  a  vill,  he  may  assemble  force  within  liis  vill  to 
arrest  the  rioters,  and  if  he  or  those  assembled  in  his  assistance 
come  to  arrest  the  rioters,  and  they  resist,  and  be  kild  by  the  con- 

(tf)  1  Geo.  cap.  5.  a  new  act  was  made  to  the  same  purport,  which  is  perpetual. 
lb)  New  Edit.  cap.  182. />.  21^7.  {(l)  Sec  also  Crompt.  23  b. 

(c)  Cap.  150.  p.  481. 


HISTORIA  PLACITORUM  CORONA.  495 

stable  or  any  of  his  assistants,  the  constable  and  his  assistants  are 
dispunishable  for  the  same,  for  he  is  enabled  hereunto  by  the  com- 
mon law,  as  being  an  officer  for  the  preservation  of  the  peace,  and 
may  command  persons  to  his  assistance,  and  if  they  refuse,  tiiey  are 
fineable  for  it. 

And  farther,  the  statute  of  HE.  2.  cap.  8.  commands 
and  authorizes  the  king's  ministers  to  use  all  their  power  [  496  ] 
to  take  and  suppress  such  riots  and  rioters,  and  a  constable 
is  the  king's  minister;  and  the  statute  of  13  //.  4.  cap.  7.  is  no 
repeal  of  this  statute,  so  that  the  killing  of  a  rioter  by  a  sheriff, 
justice  of  peace,  or  constable,  when  he  will  resist  and  not  submit  to 
the  arrest,  seems  to  be  no  felony  at  common  law,  nor  makes  any 
forfeiture,  for  they  do  but  their  office,  and  are  punishable  if  they 
neglect  it. 

S.  If  the  prisoners  in  goal  assault  the  goaler,  and  he  in  his  de- 
fense kills  any  of  them,  this  is  no  felony,  nor  makes  any  forfeiture. 
22  ^ssiz.  5.  per  Thorp,  adjudge  per  tout  le  counceL* 

*  See  ante  p.  424,  note  I. 


CHAPTER  XLII. 

CONCERNING    THE     TAKING    AWAY    OP    THE     LIFE     OF    MAN,    BY    THE 
COURSE    OF   LAW,   OR   IN   EXECUTION   OF  JUSTICE. 

This  kind  of  occision  of  a  man  according  to  the  laws  of  the  king- 
dom and  in  execution  thereof  ought  not  to  be  numbered  in  the  rank 
of  crimes,  for  it  is  the  execution  of  justice,  without  which  there  were 
no  living,  and  murders,  burglaries,  and  all  capital  crimes  would  be 
as  frequent  and  common,  as  petit  trespasses  and  batteries. 

The  taking  away  of  the  life,  theref^ore,  of  a  malefactor  according 
to  law  by  sentence  of  the  judge,  and  by  the  sheriff  or  other  minister 
of  justice  pursuant  to  such  sentence,  is  not  only  an  act  of  necessity, 
but  of  duty,  not  only  excusable,  but  commendable,  where  the  law 
requires  it.[l] 

But  because  there  are  some  cautions  and  considerations 
in  this  matter,  I  have  added  it  to  the  close  of  this  title  of  [  497  ] 
homicide. 

Regularly  it  is  not  lawful  for  any  man  to  take  away  the  life  of 
another,  tho  a  great  malefactor,  without  evident  necessity,  (whereof 
before,)  or  without  due  process  of  law,  for  the  deliberate,  uncom- 
pelled  extrajudicial  killing  of  a  person  attaint  of  treason,  felojiy,  or 
murder,  or  in  a  prsemunire,  tho  upon  the  score  of  their  being  such, 
is  niurder.(tf) 

(a)  Coron.  203. 
[I]  Foster,  267;  4  Bl  Com.  178. 


497  HISTORIA  PLACITORUM  CORONA. 

Therefore  it  is  necessary,  1.  That  he,  that  gives  sentence  of  death 
against  a  malefactor,  be  authorized  by  lawful  commission  or  charter, 
or  by  prescription  to  have  cognizance  of  the  cause.  2.  That  he 
that  executes  such  sentence  be  authorized  to  make  such  execution, 
otherwise  it  will  be  murder  or  manslaughter,  or  at  least  a  great 
misprision  in  the  judge  that  sentenceth,  or  in  the  minister  that  exe- 
cuteth.[2] 

I.  As  touching  the  authority  of  the  judge,  I  shall  not  at  large 
discourse  the  jurisdiction  of  the  judges  or  courts  in  this  place;  it  will 
be  more  proper  hereafter;  but  shall  mention  only  some  things,  that 
may  be  seasonable  for  this  place. 

If  he  that  gives  judgment  of  death  against  a  person,  hath  no  com- 
mission at  all,  if  sentence  of  death  be  commanded  to  be  executed  by 
such  person,  and  it  is  executed  accordingly,  it  is  murder  in  him  that 
commands  it  to  be  executed,  for  it  was  coram  non  judice. 

If  a  commission  of  the  peace  issue,  this  extends  not  to  treason, 
neither  can  justices  of  peace  hear  and  determine  all  treasons  by 
force  of  this  commission,  for  it  extends  only  to  felonies,  (tho  some 
treasons  are  by  act  of  parliament  limited  to  their  cognizance,  as 
hath  been   before  observed)  if  they  take  an  indictment  of  treason, 
-  and  try  and  give  judgment  upon  the  party,  this  is  most  certainly 
erroneous,  and  possibly  avoidable  by  plea,  but  I  do  not  think  it 
makes  the  justices  guilty  of  murder  in  commanding  the  execution 
of  such  sentence,  for  they  were  not  without  some  colour  of  proceed- 
ing therein,  because  all  treason  is  felony,  tho  it  be  more,  and  the 
king  may,  if  he  pleases,  proceed  against  a  traitor  for  felony; 
[  498  ]  and  antiently  a  pardon  of  all  felonies  discharged  some  trea-, 
sons.  1  E.  3.  Charter  de  Pardon  13.  22  ^ssiz.  49  Co.  P.  C. 
p.  15.  but  it  is  a  great  misprision  in  such  justices. 

The  justices  of  the  common  pleas  cannot  hold  plea  upon  an 
indictment  or  appeal  in  capital  causes,  it  will  be  at  least  erro- 
neous, if  not  voidable  by  plea;  but  if  they  hold  plea  in  appeal  of 
death  by  writ,  and  give  judgment  therein  for  the  party  to  be 
hanged,  which  is  executed  accordingly,  I  think  it  is  an  error,  and  a 
great  misprision  in  them,  but  not  felony,  because  they  had  colour  to 
hold  plea  thereof  by  an  original  writ  out  of  the  chancery  under  the 
great  seal. 

Upon  the  same  reason  I  take  it,  that  if  there  be  a  writ  sent  to  the 
sheriff",  eschetor,  or  »/2.  B.  and  C.  to  hear  and  determine  felonies, 
whereas  it  ought  to  be  a  commission,  42  ^^ssiz.  12,  13.  and  they 
proceed  thereupon  to  a  judgment  and  execution  in  case  of  felony,  it 
is  a  great  misprision,  but  I  think  it  makes  not  the  judge  nor  execu- 
tioner guilty  of  murder;  the  same  law  I  take  to  be  in  Lade's  case, 
quod  vide  Co.  P.  C.  p.  48.  5  Co.  Rep.  106.  a  Constable's  case. 
The  commissioners  upon  the  statute  of  28  H.  S.  had  given  judg- 
ment of  death  against  him  that  struck  at  sea,  and  the  party  died  at 

[2]  3  ImU  52.  211;  Foster,  270;  f!  N.  B.  244  A;  19  Rym.  Fad.  284;  1  East, 
P.  C.  335. 


HISTORIA  PLACITORUM  CORONA.  498 

land ;  and  the  same  law  I  take  to  be,  where  he  that  hath  the  fran- 
chise of  Infangthief,  gives  judgment  of  death  against  a  felon  not 
within  his  jurisdiction,  2  R.  3.  10.  b.  the  ease  of  the  abbot  of  Croiv- 
land;  it  might  be  a  cause  of  a  seizure  of  the  Uberty,  but  makes  not 
the  steward  guilty  of  murder. 

And  what  I  have  said  of  a  proceeding  in  capitals  without  the 
strict  extent  of  their  commission  may  be  said  of  the  like  proceed- 
ing, where,  in  strictness  of  law,  the  commission  happens  to  be 
determined. 

A  commission  of  gaol-delivery  issues  to  ,ji.  B.  <§"c.  they  sit  one  day, 
and  forget  to  adjourn  their  commission,  or  the  clerk  forgets  to  enter 
the  adjournment,  a  felony  is  committed  the  next  day,  and  they  pro- 
ceed in  sessions,  and  take  an  indictment,  and  give  judgment  of  death 
against  the  malefactor,  this  judgment  is  erroneous,  and  the  clerk  of 
assizes  shall  never  be  permitted  to  amend  the  record,  and  enter  an 
adjournment,  this  judgment  is  erroneous,  and  shall  be  reversed;  but 
it  makes  not  the  judges  guilty  of  murder  or  homicide,  tho  in 
strictness  of  taw  their  commission  was  determined  by  the  £  499  ]] 
first  day's  session  without  adjournment. 

King  James  issued  out  several  commissions  of  gaol-delivery,  SfC. 
the  justices  went  their  circuit,  the  king  died,  yet  they  proceeded,  and 
before  notice  of  the  king's  death  condemned  and  executed  many  pri- 
soners; it  is  held  these  proceedings  were  good,  and  the  commissions 
stood  till  notice  of  the  king's  death,  M.  3.  Car.  C.  B.  Sir  Randolph 
Creio^s  case,(6)  tho,  in  strictness  of  law,  their  commissions  were  de- 
termined by  the  king's  death;  but  suppose  they  were  both  in  law  and 
fact  determined,  the  judgments  that  happened  upon  sessions  begun 
after  the  king's  death  would  be  erroneous,  but  the  judges  had  not 
been  criminal  in  commanding  the  execution  of  their  sentence  before 
notice;  for  if  ignorantia  juris  doth  in  some  cases  excuse  a  judge, 
much  more  doth  ignorantia  facti. 

If  a  commission  of  gaol-delivery  issue  to  A.  B.  and  C.  in  the  coun- 
ty of  D.  and  afterward  a  second  commission  of  gaol-delivery  in  the 
same  county  issue  to  E.  F.  and  G.  and  there  is  notice  given  to  the 
former  commissioners,  but  no  session  by  virtue  of  the  second  com- 
mission, whereupon  the  former  proceed  notwithstanding  that  notice 
in  pays,  (as  conceiving  it  insufficient,  unless  either  a  writ  of  Super- 
sedeas had  been  sent  them,  or  at  least  a  session  by  the  second  com- 
mission) and  they  proceed  in  cases  capital,  this  makes  them  not  guilty 
of  felony,  34  Jlssiz.  8.  because  tho  the  second  commission  be  effectual 
for  them  to  proceed  without  any  actual  revocation  by  Supersedeas, 
or  otherwise  of  the  former,  yet  the  former  is  not  actually  determined, 
till  a  Supersedeas  or  a  session  by  virtue  of  the  second  commission, 
upon  an  extrajudicial  notice,  or  a  notice  in  pays,  the  first  commission- 
ers may,  if  they  please,  forbear  any  further  session,  but  they  are  not 
bound  to  take  notice  of  rumours  and  reports ;  the  like  in  case  of  a 
sheriff",  M.  26.  Eliz.  Moore  333.  5  E.  4. 

If  in  the  time  of  peace  a  commission  issue  to  exercise  martial  law, 

(6)  Cto.  Car.  93 


499  HISTORIA  PLACITORUM  CORONA. 

and  such  commissioners  condemn  any  of  the  king's  subjects  (not 

being  hsted  under  the  military  power,)  this  is  without  all 

r  500  ]  question  a  great  misprision,  and  an  erroneous  proceeding, 

and  accordingly  adjudged  in  parliament  in  the  case  of  the 

earl  o{  Lancaster,  Pari.  1  E.  3.  part  1.  de  quo  supra,  p.  344. 

And  in  that  case  the  exercise  of  martial  law  in  point  of.  death  in 
time  of  peace  is  declared  murder.  Co.  P.  C.  p.  52. 

But  suppose  they  be  listed  under  a  general  or  lieutenant  of  the 
king's  appointment  under  the  great  seal,  and  modelled  into  the  form 
and  discipline  of  an  army,  either  in  garrison  or  without,  yet  as  long 
as  it  is  tempus  pads  in  this  kingdom,  they  cannot  be  proceeded 
against  as  to  loss  of  life  by  martial  law;  and  the  same  for  mariners 
that  are  within  the  body  of  the  kingdom,  but  their  misdemeanors,  at 
least  if  capital,  are  to  be  punished  according  to  the  settled  laws  of  the 
kingdom,  3  Car.  cap.  1.  the  petition  of  right;  yea,  and  it  seems  as  to 
mariners  and  soldiers  at  sea,  when  in  actual  service  in  the  king's 
ships,  they  ought  not  to  be  put  to  death  by  martial  law,  unless  it  be 
actually  in  time  of  hostility ;  and  this  appears  by  the  statute  of  28  H.  8. 
that  settled  a  commission  to  proceed  criminally  in  cases  of  treason 
and  felony,  and  by  the  late  act  of  13  Car.  2.  cap.  9.  settling  special 
orders  under  pain  of  death  by  act  of  parliament  ;(c)  but  indeed,  for 
crimes  committed  upon  the  high  sea,  the  admiral  had  at  common  law 
a  jurisdiction  even  unto  death,  secundum  leges  maritimas ;  but  this 
was  a  different  thing  from  martial  law. 

And  this  appears  also  by  the  statute  of  13  7?.  2.  cap.  2.  the  constable 
and  marshal,  who  are  the  J udices  ordinarii  in  cases  belonging  to  the 
martial  law,  are  yet  thereby  declared  to  have  no  jurisdiction  within 
the  realm,  but  of  things  that  touch  war,  which  cannot  be  discussed 
nor  determined  by  the  common  law. 

It  must  therefore  be  a  time  of  war,  that  must  give  exercise  to  their 
jurisdictions,  at  least  in  cases  of  life. 

And  thus  far  concerning  the  judicial  sentence  of  death,  where  and 
when  it  is  homicide  criminally,  and  when  not. 

II.  Now  a  few  words  concerning  the  officer  executing  such  sen- 
tence, and  where  and  when  he  is  culpable  in  so  doing. 

Wheresoever  the  judge  hath  jurisdiction  of  the  cause,  the 
[  501  3  officer  executing  his  sentence  is  not  culpable,  tho  the  judge 
err  in  his  judgment,  but  if  the  judge  have  no  manner  of  juris- 
diction in  the  cause,  the  officer  is  not  altogether  excusable,  if  he  exe- 
cute the  sentence. 

In  the  great  courts  of  justice,  as  of  oyer  and  terminer,  gaol- 
delivery,  and  of  the  peace,  regularly,  the  sheriff  of  the  county,  or 
those  that  he  substitutes,  as  under-sheriff,  gaoler,  or  executioner,  are 
the  ordinary  ministers  in  execution  of  malefactors,  and  they  are  to 
pursue  the  sentence  of  the  court,[3]  and  therefore,  1.  If  he  vary  from 

(c)  And  this  appears  also  from  the  annual  statutes  for  punishing  mutiny  or  desertion. 
3  Geo.  1.  cap,  2.  S^  mullos  alios. 

[3]  Sec  this  rule  explained,  Foster,  267,  sec.  9. 


HISTORIA  PLACITORUM  CORONJ^..  501 

the  judgment,  as  where  the  judgment  is  to  be  hanged,  if  he  behead 
the  party,  it  is  held  murder.(c/)  2.  It  must  be  done  by  the  proper 
officer,  viz.  the  sheriff  or  his  substitute,  if  another  doth  it  of  his  own 
head,  it  is  held  murder:  vide  Co.  P.  C. p.  52. [4] 

The  use  heretofore  was,  and  regularly  should  be  so  still,  that  if 
sentence  of  death  be  given  by  the  lord  high  steward,  a  warrant 
under  the  seal  of  the  lord  steward,  and  in  his  name  should  issue  for 
the  execution,  and  the  like  by  three  at  least  of  the  commissioners  of 
01/er  and  terminer,  where  sentence  of  death  is  given  by  them.  Co. 
P.  C.p.  31. 

But  use  hath  obtaind  otherwise  before  commissioners  of  goal- 
delivety,  for  there  is  no  warrant  under  the  seal  of  the  justices  for 
execution,  but  only  a  brief  abstract  or  calendar  left  with  the  sheriff 
or  gaoler;  and  I  remember  Mr.  Justice  Rolle  would  never  subscribe 
a  calendar,  but  after  judgment  given  would  command  the  sheriff  in 
court  to  do  execution,  and  for  not  doing  it,  he  fined  Varney  the 
sheriff  of  Warwickshire  2000/. 

If  a  prisoner  be  removed  into  the  king's  bench  by  Habeas 
Corpus,  or  taken  upon  an  indictment  of  felony  in  Middle-  [  502  ] 
sex,  and  be  committed  to  the  marshal,  and  upon  his  arraign- 
ment be  found  guilty,  and  hath  judgment  to  die,  the  court  may  send 
the  person  to  JVewgafe,  and  command  the  sheriff  of  Middlesex  to  do 
execution,  but  if  he  be  remitted  to  the  marshal,  (as  regularly  he 
ought  to  be,)  then  the  marshal  is  the  proper  officer  of  the  court  to 
do  execution,  and  he  may  execute  the  offender  in  Middlesex,  where- 
ever  the  offense  was  committed, (e)  and  the  court  may  ore  tenus,  or 
by  their  order,  command  the  sheritfof  Middlesex  to  be  assisting,  but 
the  entry  upon  the  roll  ought  to  be,  Et  praeceptum  est  marescallo, 
Sj'C.  quod  facial  executionera  periculo  incumbent e ;  and  thus  it 
was  done  H.  24.  Car.  2.  upon  a  conviction  of  murder  committed 
in  Kent  upon  a  trial  at  the  king's  bench  bar,  upon  search  and  pro- 
ducing of  many  antient  and  late  precedents,  for  regularly,  he  that  is  the 

(<f)  Of  this  opinion  was  also  lord  Coke,  Co.  P.  C.p.  52.  211.  notwithstanding  it  had 
been  practised  otherwise  in  some  instances,  as  in  tlie  case  of  queen  Ann  Boleyn,  and 
queen  Katherine  Howard,  in  the  time  of  Henry  VIII.  the  duke  of  Somerset  in  the  time 
of  Edward  VI.  and  the  lord  Audley  in  tiie  time  of  Charles  I.  upon  the  authority  of 
which  cases  the  lady  Alice  Lisle  was  beheaded  for  treason.  1  Jac,  II.  See  State  TV. 
Vol.  IV.  p.  129. 

So  in  the  cases  o(  Ashlon,  19  Jan.  1690.  at  the  Old  Baily,  (State  Tr.  Vol.  IV.  ^  483.) 
and  Matthews  the  printer,  Octob.  30,  1719,  at  the  Old  Baily,  who  were  both  sentenced  for 
higii  treason,  and  were  handed  till  they  were  dead,  without  any  quartering  or  beheading, 
altho  this  was  not  only  ditferent  from,  but  contrary  to  the  sentence  in  high  treason, 
which  orders,  that  they  shall  be  hanged,  but  not  till  they  are  dead :  but  as  lord  Coke 
says  in  the  place  above-mentioned,  Judicandum  est  legihus  non  exemphs;  and  indeed, 
since  the  judgment  is  the  warrant  for  the  execution,  it  should  seem  that  every  execu- 
tion, which  is  not  pursuant  to  the  judgment,  is  unwarrantable. 

(e)  See  Althoes  case  supra  in  notis  p.  464.  who  were  executed  in  Surrey  for  a  fact 
committed  in  Pembrokeshire  in  Wales:  see  also  the  case  of  Fitz-Palrick  and  Brodway, 
State  Tr.  Vol.  I.  p.  374,  who  were  executed  in  Middlesex  for  a  fact  in  Wiltshire,  and 
the  case  of  Layer,  State  Tr.  Vol.  Wl.p.  332.  who  was  executed  in  Middlesex  for  a  fact 
in  Essex, 

[4]  4  Bl.  Com.  17S. 


502  HISTORIA  PLACITORUM  CORONA. 

immediate  minister  of  the  court,  ought  to  make  execution,  and  such 
is  tlie  marshal  to  the  court  of  king's  bench,  especially  where  the  per- 
sons are  committed  to  his  custody,  and  this  is  done  without  any  writ, 
but  only  by  the  command  of  the  court  ore  tenus. 

And  thus  far  concerning  the  death  or  killing  of  a  man,  where  it  is 
not,  and  where  it  is  punishable,  and  the  several  degrees  thereof.[5] 

Foster,  267. 


[503]  CHAPTER  XLIII. 

OF    LARCINY,  AND    ITS    KINDS. 

Altho  the  offenses  of  burglary  and  arson  are  of  an  higher  nature 
than  larciny,  yet  because  there  be  some  things  that  fall  under  the 
consideration  of  larciny,  that  are  necessary  to  be  known  previousjy 
to  the  consideration  of  burglary,  ^-c.  I  shall  begin  with  this. 

Larciny  or  theft,  under  the  various  laws  of  several  countries,  hath 
been  under  various  degrees  of  punishment;  in  some  countries  the 
punishment  was  triple  or  fourfold  restitution,  as  among  the  Jews,{a) 
in  others  deportation  or  banishment,  or  condemning  to  several  em- 
ployments, as  among  the  Romans-lb) 

And  in  England,  in  antient  time,  the  punishment  of  theft  was  not 
fixed  or  settled,  and  altho  Hoveden  and  Simon  Dunelmensis  tell  us, 
thdii  Jirmissimd  lege  statuit  Hqwucws  primus,  quod  fares  latrocinio 
deprehensi  suspendaniur ;  yet  in  the  time  of  Henry  II.  they  were 
otherwise  punished;  quod  vide  apud  Selden.  Jur.  Jing.  p.  83.  But 
the  same  law,  touching  the  punishment  of  grand  larciny  with  death, 
seems  to  have  been  fixed  and  settled  ever  since  the  time  of  Henry  II. 
and  Bracton,  that  wrote  in  the  time  of  Henry  III.  takes  it  as  a  thing 
settled  and  commonly  practised  in  his  time :  vide  ipsum.  Lib.  III. 
cap.  32.  jo.  151.  b.{*) 

Now  touching  the  kinds  of  larcinies  they  are  two,  viz.  either  sim- 
ple larciny,  or  larciny  accompanied  with  violence  or  putting  in  fear, 
which  is  called  robbery. 

Simple  larciny  or  theft  is  of  two  kinds,  viz. 

Grtnd  larciny,  when  it  is  above  the  value  of  twelve-pence. 

Petit  larciny,  when  only  of  the  value  of  twelve-pence,  or  under. 

The  nature  of  the  offense  is  the  same  in  both,  but  the  degrees  of 
their  punishment  differ,  as  shall  be  said. 

(a)  Vide  supra,  p.  9.      {h)  Vide  supra,  p.  11,      (*)  Vide  supra,  p.  12.  Sf  notes  ibidem. 

[5]  In  McLeod's  case,  the  Supreme  Court  of  the  State  of  New  York  held  that  a  subject 
of  Great  Britain,  who,  under  directions  fronm  the  local  authorities  of  Canada,  cotniiiits 
homicide,  within  the  State  of  Netc  York,  in  time  of  peace,  may  be  prosecuted  in  the 
State  courts  as  a  murderer;  even  though  his  sovereign  subsequently  approve  his  con- 
duct, by  avowing  the  direction,  under  which  he  did  it  as  a  lawful  act  of  government. 
The  People  v.  McLeod,  1  Hill,  377. 


J 


HISTORIA  PLACITORUM  CORONA.  504 

And  therefore  what  is  said  concerning  grand  larciny  here 
is  applicable  to  petit  larciny,  except  as  to  the  point  of  pun-  [504  3 
ishment,  for  the  punishment  of  grand  larciny  is  death  and 
loss  of  goods,  the  punishment  of  petit  larciny  is  loss  of  goods  and 
whipping,  but  not  death. 

Simple  larciny  is  defined  by  Bracton{c)  and  Briiion(cl)  to  be 
fraudulenta  contractaiio  rei  aliense  cum  nnimo  furandi  invito 
domino,  ciijus  res  ilia  fuerit :  by  my  lord  Coke  to  be  the  felonious 
and  fraudulent  taking  and  carrying  away  by  any  man  or  woman  of 
the  mere  personal  goods  of  another,  neither  from  the  person,  nor  by 
night,  in  the  house  of  the  owner.    Co.  P.  C.  p.  107.[1] 

1  shall  pursue  his  method  in  that  chapter  with  such  additions, as 
shall  be  requisite. 

The  indictment  runs  vi  Sf  armis  felonice  furatusfuit,  cepit  4*  a^- 
portavit  in  case  of  dead  chattels,  cepit  4'  ahduxit  in  case  of  a  horse, 
cepit  and  effugavit  in  case  of  sheep,  cows,  4'C.  wherein  the  words 
felonice  furatiis  fuit,  cepit,  are  essential  to  the  crime. 

This  description  gives  us  these  heads  of  inquiry. 

1.  What  a  taking.  2.  What  a  carrying  away.  3.  What  a  felo- 
nious taking  and  carrying  away.  4.  What  the  personal  goods. 
5.  What  the  goods  of  another.    6.  What  or  who  may  be  said  a  taker. 

(c)  Lih.  III.  de  corona,cap.  32. /oZ.  150.  b. 

Id)  Cap.  15.  p.  22.    See  also  Fleta,  Lib.  I.  cap.  38.  p.  54. 


[1]  "Larceny,  theft,  or  stealing,  is  the  fraudulently  taking  any  thing  of  marketable, 
saleable,  assignable  or  available  value,  belonging  to  or  being  the  property  of  another, 
with  the  intent  on  the  part  of  the  person  so  taking  the  same  fraudulently  and  without 
right  to  appropriate  the  same  to  or  dispose  of,  conceal  or  destroy  the  same  for  his  own 
use  and  benefit,  or  to  the  use  and  benefit  of  any  other  person  than  the  owner  of,  or  person  in- 
terested in  the  same  or  entitled  to  the  possession  thereof,  and  to  deprive,  defraud,  or  despoil 
the  owner  thereof  or  person  interested  therein  or  entitled  to  possession  thereof,  of  the  same, 
or  of  tlie  value  thereof,  or  of  his  property  or  interest  therein,  or  of  the  benefit  he  might 
derive  therefrom,  against  the  will  of  such  owner  or  person  interested,  and  without,  at  the 
time  of  taking,  having  an  intention  then  or  thereafter  bonajide  to  make  compensation  or 
indemnity  therefor,  or  a  restoration  thereof,  to  such  owner  thereof,  or  person  interested 
therein  or  entitled  to  possession  thereof."  Penal  Code  of  Mass.  2.  This  definition  of 
larceny  is  given  by  the  Mass.  Commissioners,  and  is  intended  to  characterize  the 
crime  precisely  as  at  the  common  law.     It  is  thought  to  be  comprehensive  and  accurate. 

The  English  commissioners,  in  their  first  report  oa  dim.  Law,  p.  16,  have  given  six 
different  definitions  of  this  crime  from  as  many  ditferent  sources. 

1.  Blachstone.  "Theft  is  the  felonious  taking  and  carrying  away  the  goods  of  an- 
other." 

2.  Eyre,  Oh.  Just.  ''  Larceny  is  the  wrongful  taking  of  goods  with  intent  to  despoil 
the  owner  of  them  lucri  causa.^'' 

3.  Grose,  J.  in  delivering  the  opinion  of  the  twelve  judges.  "The  felonious  taking  of 
the  property  of  another  without  his  consent  and  against  his  will,  with  intent  to  convert 
it  to  the  use  of  the  taker." 

4.  Pulton.  "Larceny  is  the  fraudulent  taking  away  of  another  man's  goods  above  the 
value  of  twelve  pence,  without  the  knowledge  of  him  whose  the  goods  be." 

5.  Lombard.  "Larceny  is  the  fraudulent  and' felonious  taking  of  another  man's  goods 
(removal  from  his  body  and  person)  without  his  will,  to  the  end  to  steal  them." 

6.  Dalton.  "  Larceny  is  the  fraudulent  and  felonious  taking  away  of  another  man's 
personal  goods  (removed  from  his  body  and  person)  in  the  absence  of  the  owner,  without 
his  knowledge." 

VOL.  I. — 44 


504  HISTORIA  PLACITORUM  CORONA. 

These  regularly  are  the  ingredients  into  this  crime  of  felony,  and 
must  be  severally  considered. 

I.  What  shall  be  said  a  taking. 

If  c^.  delivers  a  horse  to  B.  to  ride  to  D.  and  return,  and  he  rides 
away  unimu  furandi,  this  is  no  felony, [2]  the  like  of  other  goods.(e) 
Co.  P.  C.  p.  107.  28  E/iz.  Butler's  case. 

So  if  a  man  deliver  goods  to  a  carrier  to  carry  to  Dover,  he  carries 
them  away,  it  is  no  felony, [2]  but  if  the  carrier  have  a  bale  or  trunk 
with  goods  delivered  to  him,  and  he  break  the  bale  or  trunk, 
[  505  ~\  and  take  and  carry  away  the  goods  (mimo  furandi,  or  if  he 
carry  the  whole  pack  to  the  place  appointed,  and  then  carry 
it  away  animo  furandi,  this  is  a  felonious  taking  by  the  book  of  13 
E.  4  9.  Co.  P.  C.p.  107. 

But  that  must  be  intended,  when  he  carries  them  to  the  place,  and 
delivers  or  lays  them  down,  for  then  his  possession  by  the  first  de- 
livery is  determined,  and  the  taking  afterwards  is  a  new  taking:  vide 
21  H.  7.  14. 

Before  the  statute  of  21  H.  S.  cap.  7.  if  a  man  had  deliverd  goods 
to  his  servant  to  keep  or  carry  for  him,  and  he  carrieth  them  away 
animo  furandi,  this  had  not  been  felony, (/)  but  by  that  statute  it  is 
made  felony,  if  of  the  value  of  forty  shillings;  but  the  offender  shall 
at  this  day  have  his  clergy;(^)  but  yet  if  an  apprentice(A)  doth  this, 
or  if  a  man  deliver  a  bond  to  his  servant  to  receive  money,  or  deliver 

(e)  Upon  this  principle  it  was  doubted,  whether  a  person  hiring  lodgings  was  guilty  of 
felony  in  stealing  tiie  goods  he  had  hired  willi  his  lodgings.  See  Kcl.  24  8^  81.  but  this 
doubt  is  removed  by  3  cSf  4  W.  S^  M.  cap.  9.  whereby  it  is  declared  to  be  felony. 

(/)  This  was  a  disputed  point  (!^ee  3  H.  7.  12  b.)  for  which  reason  the  statute  of  21  H, 
8.  cap.  7.  was  made  to  settle  the  doubt  that  was  at  common  law  ;  for  in  the  beforemen- 
tioned  case,  21  H.  7,  14.  it  is  said  to  be  felony,  if  he  was  intrusted  with  the  keeping  only 
within  the  house,  stable,  <SfC.  because  then  the  things  are  adjudged  in  the  master's  pos- 
session;  but  if  he  be  intiusted  to  carry  the  things  out  of  the  house,  ^c.  elsewhere,  then 
it  is  not  felony. 

ig)  By  27  H.  8.  cap.  17.  Clergy  was  taken  away,  restored  again  by  1  J5^.  6  cap.  12.  and 
again  taken  away  by  12  Ann.  cap.  7.  from  offenses  committed  in  any  dwelling-house  or 
out-house,  excepting  in  the  case  of  apprentices  under  the  age  of  fifteen  years.  See  note, 
ch.U. 

(Ji)  The  statute  also  excepts  all  servants  within  the  age  of  eighteen  years,  this  act, 
which  was  repeal'd  by  the  general  words  of  1  Mar.  cap.  1.  is  revived  by  S  Eliz.  cap,  10. 

[2]  Bailees  without  hire  cannot,  at  the  common  law,  commit  larceny.  2  £asi,  P.C. 
G81.  684.  Rose,  on  Crim.  Ev.  478.  Leigh's  case,  2  East,  P.  C.  694.  Gornion's  case,  2 
Overton's  Rep.  68. 

Carriers,  for  hire,  cannot,  by  the  common  law,  commit  larceny.  Fletcher's  case,  4  Carr. 
Sf  I'ay.  545.  Prathifs  case,  5  Id.  533.  Maddux's  case,  Russ.  iSf  Rif.  92.  This  rule  is 
now,  however,  much  broken  in  upon,  and  altered  by  judicial  decision  and  legislation. 
See  Com.  v.  Brown,  4  Mass.  R.  580.  Mass.  Rev.  Slat.  c.  126.  s.  30. 

In  the  case  of  a  theft  by  a  carrier,  who,  having  a  lien,  and  consequently  a  right  of 
possession,  slept  out  of  the  character  in  which  he  exercises  sucli  possessory  rigiit  and 
removes  the  thing  or  a  part  of  it,  and  disposes  of  it,  in  violation  of  his  trust,  with  intent 
to  steal  il,  this  is  held,  in  tlio  jurisprudence  both  of  England  and  this  country  to  be  a 
stealing  of  the  thing,  or  such  jiarl,  I'roni  the  proprietor,  notwithstanding  the  carrier,  both  , 
on  account  of  his  hen  and  his  charge  of  the  thing  and  responsibility  for  its  value,  is  both 
a  proprietary  and  possessory  owner  of  it.  Report  of  the  Penal  Code  of  Mass.  p.  11.  See 
also  Com.  v.  Williams,  1  Virg.  Cas.  14.  Com.  v.  JIai/s,  Idem.  122.  Thompson  v.  Com. 
2  Virg.  Cas.  135.  Angel  v.  Com.  Id.  228.  The  Slate  v.  Somerville,  21  Maine  R.  14.  Com. 
V.  Morse,  14  Muss.  R  217.  ace.  Norton  v.  The  People,  8  Cow.  R.  137.  contra  Poole  v. 
Simmonds,  1  N.  II.  Rep.  289. 


i 


HISTORIA  PLACITORUM  CORONA.  505 

him  goods  to  sell,  and  he  accordingly  sells  and  receives  the  money, 
arid  carries  it  away  animofurundi,\\\\s  is  neither  felony  at  common 
law,  nor  by  this  statute.     Co.  P.  C.p.  105.  26  H.  S.  Dy.  5.  a.  b. 

*ji.  a  servant  of  B.  receives  the  rents  of  B.  and  animo  furundi  car- 
ries it  away,  this  is  not  felony  at  common  law,  because  A.  had  it  by 
delivery;  nor  by  the  statute,  because  he  had  it  not  by  the  delivery  of 
his  master  or  mistress.    Dalt.  cup.  102. (/) 

^i.  delivers  the  key  of  his  chamber  to  B.  who  unlocks  the  cham- 
ber, and  takes  the  goods  of  ^^.  animo furandi,\h\:&  is  felony, because 
the  goods  were  not  delivered  to  him,  but  taken  by  him.  1.3  E.  4.  9.  h. 

He,  that  hath  the  care  of  another's  goods  hath  not  the  pos- 
session of  them,  and  therefore  may,  by  his  felonious  em-  [  506  ]] 
bezzling  of  them,  be  guilty  of  felony ;  as  the  butler  that  hath 
the  charge  of  the  master's  plate;  the  shepiierd  that  hath  the  charge 
of  his  master's  sheep.   3  H.  7.  12.  h.  21  H.  7.  15.  a.  Co.  P.  C.p.  108. 

The  like  law  for  him  that  takes  a  piece  of  plate  set  before  him  to 
drink  in  a  tavern,  Sf-c.  for  he  hath  only  a  liberty  to  use,  not  a  posses- 
sion by  delivery.  13  E.  A.  9. 

And  so  it  is  of  an  apprentice,  that  feloniously  embezzels  his  inas- 
ter's  goods  or  money  out  of  his  shop,  it  is  felony.  Dalt.  cap.  102. 

\{Jl.  comes  to  B.  and  hj  a  false  message  or  token  receives  money 
of  him,  and  carries  it  away,  it  is  no  felony,  but  a  cheat  punishable 
by  indictment  at  common  law,  or  upon  the  statute  of  33  H.  8.  cap.  1. 
by  salting  in  the  pillory. 

\i  ,ji.  finds  the  purse  of  B.  in  the  highway,  and  takes  it  and  carries/ 
it  away,  and  hath  all  the  circumstances  that  may  prove  it  to  be  done 
animo  furandi,  as  denying  it  or  secreting  it,  yet  it  is  not  felony,[3] 
the  like,  in  case  of  taking  of  a  wreck  or  treasure-trove,  22  Jlssiz.  99.J 
or  a  waif  or  stra3^ 

But  yet  this  taking  of  treasure-trove,  waif,  or  stray  must  be  where 
the  party  that  takes  them,  really  believes  them  to  be  such,  and  colours 
not  a  felonious  taking  under  such  a  pretense,  for  then  every  felon 
would  cover  his  felony  with  that  pretense. 

Where  a  man's  goods  are  in  such  a  place,  where  ordinarily  they 
are  or  may  be  lawfully  placed,  and  a  person  takes  them  animo  fii- 
randi,  it  is  felony,  and  the  pretense  of  finding  must  not  excuse. 

If  a  man's  horse  be  going  in  his  ground,  or  upon  his  common,  and 
he  takes  it  animo  furandi,  it  is  no  finding,  but  a  felony.   '  ~ 

So  it  is  if  the  horse  stray  into  a  neighbour's  ground  or  common,  it 
is  felony  in  him  that  so  takes  him;  but  if  the  owner  of  the  ground 
■takes  it  damage  feasant,  or  the  lord  seises  it  as  a  stray,  tho  perchance 
he  hath  no  title  so  to  do,  this  is  not  felleo  animo,  and  therefore  can- 
not be  felony. 

If  the  sheep  of  ^^.  stray  from  the  flock  of  ^^.  into  the  flock 
of  B.  and  B.  drives  them  along  with  his  flock,  or  by  pure   [507] 
mistake  shears  him,  this  is  not  a  felony,  but  if  he  know  it  to 

(i)  New  Edit.  cap.  155.  p.  496. 
[3]  2  Ru8s.  on  Crimes,  12.  5  Am.  Ed.  1845.  note  (gg.) 


507  HISTORIA  PLACITORUM  CORONA. 

be  another's,  and  marks  it  with  his  marks,  this  is  an  evidence  of  a 
felony.  [4] 

■~  A  man  hides  a  purse  of  money  in  his  corn-mow,  his  servant  find- 
ing it  took  part  of  it,  if  by  circumstances  it  can  appear  he  knew  his 
master  laid  it  there,  it  is  felony;  but  then  the  circumstances  must  be 
pregnant,  otherwise  it  may  be  reasonably  interpreted  to  be  a  bare 
^finding,  because  an  unusual  place  for  such  a  depositiim. 

Ji.  hath  a  design  to  steal  the  horse  of  B.  enters  a  plaint  of  replevin 
in  the  sheriff's  court  for  the  horse,  and  gets  himdeliver'dto  him,  and 
then  rides  him  away;  this  is  taking  and  stealing,  because  done  m 
frcmdem  legis,{k)  P.  15  Eliz.  B.  R.  Co.  P.  C.  p.  108. 

Jl.  hath  a  mind  to  get  the  goods  of  B.  into  his  possession,  privat-ely 
delivers  an  ejectment,  and  obtains  judgment  against  a  casual  ejector, 
and  thereby  gets  possession,  and  takes  the  goods,  if  it  were  anmio 
furo.ndi,  it  is  larciny.[5]. 

— ■  If  ^.  steals  the  horse  of  B.  and  afterwards  delivers  it  to  C  who 
was  no  party  lo  the  first  stealing,  and  C.  rides  away  with  it  animo 
fiirandi,  yet  C.  is  no  felon  to  B.  because  tho  the  horse  was  stolen 
from  B.  yet  it  was  stole  by  A.  and  not  by  C.  for  C.  non  cepit,  neither 
is  he  a  felon  to  t/1.  for  he  had  it  by  his  delivery. 

But  if  Ji.  steal  the  horse  of  J5.  and  after  C.  steal  the  same  horse 
from  ./?.  in  this  case  C.  is  a  felon  both  as  to  A.  and  as  to  B.  for  by 
the  theft  by  J2.  B.  lost  not  the  property,  nor,  in  law,  the  possession 
of  his  horse  or  other  goods,  and  therefore  in  that  case  C.  may  be  ap- 
peal'd  of  felony  by  B.  or  indicted  of  felony,  quod  cepit  <§'  asportuvit 
the  horse  of  B.  4  H.  7.  5.  b.  13  E.  4.  3.  b. 

And  that  is  the  reason,  that  if  Jl.  steals  the  goods  of  B.  in  the 
county  of  C  and  carry  them  into  the  county  of  D.  A.  may  be  in- 
dicted for  larciny  in  the  county  of  Z>.  for  the  continuance  of  the  as- 
portation is  a  new  caption;  but  if  he  be  indicted  of  robbery, 
[  508  ]  it  must  be  in  the  county  of  C.  where  the  force  and  putting 
.  in  fear  was,  de  quo  postea.   4  H.  7.  5.  b. 

II.  The  words  of  the  indictment  are  not  only  cepit,  but  cepit  Sf  as- 
•portavit,  or  abduxit  or  effugavit.* 

\i  A.  comes  into  the  close  of  ^.  and  take  his  horse  with  an  intent 
to  steal  him,  and  before  he  gets  out  of  the  close  is  apprehended,  this  ' 
is  a  felonious  taking  and  carrying  away,  and  is  larceny.     Co.  P.  C. 
]).  lOS,  109.     Justice  Dalison^s  reports. 

So  if  a  guest  lodge  in  an  inn,  and  take  the  sheets  of  the  bed  with 
an  intent  to  steal  them,  and  carries  them  out  of  his  chamber  into  the 
hall,  arid  going  into  the  stable  to  fetch  his  horse  is  apprehended,  this 

Qc)  See  also  Kel.  42. 

[4]  Reg.  V.  Reed,  1  Carr.  <^  M.  306. 

[5]  To  coiJstitutc  the  crime  of  larceny,  tlio  taking  must  be  invito  domino,  against  the 
will  of  the  owner,  and  tlic  i)ropcrty  in  liis  actual  or  constructive  possession,  tlite  v.  The 
iilate,  9  Merger,  iU8  ;  and  there  must  be  a  criminal  intention  on  the  part  of  the  taker, 
or  an  indictment  for  larceny  cannot  be  sustained.  The  State  v.  Hawkins,  8  Porter,  R.  461. 
Wfiarton''s  Crim.  Law,  3!J4-398,  where  the  American  authorities  are  fully  collected. 
2  Russell  on  Crimes,  VJ.  ruh.  Am.  Ed.  1845,  and  see  note  {l)post.p.  508. 

»  Vide  note  [1]  post.  p.  508. 


HISTORIA  PLACITORUM  CORON^E.  508 

is  felony,  and  a  felonious  taking  and  carrying  away,  27  ^^ssiz.  39. 
Co.  P.  C.  p.  lOS.  and  accordingly  it  was  ruled  16  Car.  2.  B.  R.  upon 
a  special  verdict  found  in  Cambridf^eshire,{l)  A.  comes  into  the 
dwelling-house  of  B.  nobody  being  there,  and  breaks  open  a  chest 
and  takes  out  goods  to  the  value  of  jive  shillings,  and  lays  them  on 
the  floor  of  the  same  room,  and  is  apprehended  before  he  can  remove 
them. [6]  he  was  indicted  upon  the  statute,  and  ousted  of  his  clergy 
by  the  advice  of  all  the  judges,  except  one;  for  the  taking  out  of  the 
chest  was  felony  by  the  common  law,  and  the  statute  of  39  Eliz.  cap. 
15.  alters  not  the  felony,  but  ousts  only  the  clergy.  Ex  lihro  Bridge- 
man. 

A.  hath  his  keys  tied  to  the  strings  of  his  purse,  B.  a  cut-purse 
takes  his  purse  with  money  in  it  out  of  his  pocket,  but  the  keys, 
Avhich  were  hanged  to  his  purse-strings,  hanged  in  his  pocket, 
Jl.  takes  B.  with  his  purse  in  his  hand,  but  the  string  hanged  to  his 
pocket  by  the  keys,  it  was  ruled  this  was  no  felony,  for  the  keys  and 
purse  strings  hanged  in  the  pocket  of  Ji.  whereby  A.  had  still  in 
law  the  possession  of  his  purse,  so  that  licet  cepit  non  asportavlt^ 
40  Eliz,  Wilkinson^s  case  cited  M.  S.  Jac.  C.  B.{m)  2  East, 
P.  C.  556. 

III.  As  it  is  cepit  and  asportavil,  so  it  must  hefehnicS  or  animo 
furandi,  otherwise  it  is  not  felony, [7]  for  it  is  the  mind  that  makes 

(I)  Simpson's  case,  Kel.  31.  (m)  See  Crompt.  Justice  35  a. 


[fi]  Simpson's  case,  Kel.  31.  State  v.Wilson,  Coxe's  N.  J.  Rep.  439.  Amier's  case,  G  C. 
Sf  Pay.  344.  2  East's  P.  C.  555.  Rose.  Cr.  Ev.  470.   Walsh's  case,  Moody,  14. 

'  [7]  What  amounts  to  a  felonious  taking. — If  a  person  picks  up  a  thing,  when  he  knows 
that  lie  can  immediately  find  the  owner,  and  instead  of  returning  it  to  the  owner,  con- 
verts it  to  his  own  use,  this  is  a  larceny.     Rex  v.  Pope,  6  Car.  Sf  P.  34G. 

If  a  party  finding  property  knows  the  owner,  or  if  there  be  any  mark  upon  it  by  which  1 
the  owner  can  be  ascertained,  and  instead  of  returning  it,  converts  il  to  his  own  use,  | 
such  conversion  will  constitute  a  felonious  taking.  Anon.  2  Russ.  C.  ^  M.  102.  Rex  v. ' 
James,  id. 

A.  went  to  a  sliop  and  asked  a  boy  there  to  give  him  change  for  a  half-crown;  the 
boy  gave  him  two  shillings,  and  sixpenny  worth   of  copper.     The  prisoner  held  out  a 
'  half-crown,  which  the  boy  touched,  but  never  got  hold  of  it,  and  the  prisoner  ran  away 
with  the  two  shillings  and  the  copper  :— //eZ(/  a  larceny  of  the  two  shillings  and  the  cop- 
per.    Rex.  V.  Williams,  6  Car.  Sf  P.  390. 

A.  the  owner  of  a  boat  was  employed  by  B.  the  captain  of  a  ship,  to  carry  a  number  of 
wooden  staves  ashore  in  his  boat;  B.'s  men  were  put  into  the  boat,  but  were  under  the 
control  of  A.  who  did  not  deliver  all  the  staves,  but  took  one  of  them  away  to  the  house 
of  his  mother : — Held,  that  this  was  a  bailment  of  the  staves  to  A.  and  not  a  charge  only  ; 
and  that  a  mere  non-delivery  of  tlie  staves  would  not  have  been  a  larceny  in  A.  but  that 
if  A.  separated  one  of  the  staves  from  the  rest,  and  carried  it  to  a  place  different  from 
that  of  its  destination  with  intent  to  appropriate  it  to  his  own  use,  that  was  equivalent 
to  a  breaking  of  bulk,  and  therefore  would  be  sufficient  to  constitute  a  larceny.  Rex  v. 
Howell,  7  Cur.  Sf  P.  325. 

If  A.  asks  li.  who  is  not  his  servant,  to  put  a  letter  in  tlie  post,  telling  him  it  contains 
money,  and  B.  breaks  the  seal  and  abstracts  the  money  before  he  puts  the  letter  into  the 
post,  he  is  guilty  of  larceny.  Rex  v.  Jones,  7  Car.  Sf  P.  151.  But  if  a  person,  from  idle 
curiosity,  either  personal  or  political,  opens  a  letter  addressed  to  another  |)erson,  and 
4eeps  the  letter,  tills  is  no  larceny,  even  though  a  part  of  his  object  may  be  to  prevent  the 
letter  from  reaching  its  destination.     i?eo-.  v.  Godfrey,  8  Car.  Sf  P.  563. 

To  constit'itc  a  larceny,  by  a  party  to  whom  goods  have  been  delivered  on  hire,  there 


508  HISTORIA  PLACITORUM  CORONA. 

the  taking  of  another's  goods  to  be  a  felony,  or  a  bare  trespass  only 

but  because  the  intention  and  mind  are  secret,  the  intention  must  be 

judged  by  the  circumstances  of  the  fact,  and  tho  these  cir- 

[]  509  ]  cnmstances  are  various,  and  may  sometimes  deceive,  yet 


must  not  only  be  an  original  intention  to  convert  them  to  his  own  use,  but  a  subsequent 
actual  conversion  ;  and  a  mere  agreement  by  the  liirer  to  accept  a  sum  ofFc-rcd  for  the 
goods  is  not  sucli  conversion  if  the  party  who  makes  the  oft'er  does  not  intend  to  pur- 
chase unless  liis  suspicions  as  to  the  honesty  and  right  of  the  vendor  to  sell  are  removed. 
Reg.  V.  Brooks,  8  Car.  &f  P.  295. 

A  person  by  false  pretences  induced  a  tradesman  to  send  by  his  servant  to  a  particular 
house,  goods  of  the  value  of '2s.  10^/.  with  change  for  a  crown  piece.  On  tlie  way  he 
met  the  servant,  and  induced  ium  to  part  with  the  goods  and  change  a  crown  piece,  but 
whicii  afterwards  was  found  to  be  bad.  Both  the  tradesman  and  servant  swore  that  the 
latter  had  no  authority  to  part  with  the  goods  or  change  without  receiving  the  crowtt 
piece  in  payment;  though  the  former  admitted  that  he  intended  to  sell  the  goods,  and 
never  expected  them  back  again: — Held  that  the  offence  amounted  to  larceny.  Rex  v. 
Small,  8  Car.  S^  P.  46. 

On  an  indictment  for  larceny  it  appeared  that  a  landlord  went  to  his  tenant  (who  had 
removed  all  his  goods)  to  demand  rent  amounting  to  £12  10s.  taking  with  him  a  receipt 
ready  written  and  signed ;  the  tenant  gave  him  £2,  and  asked  to  look  at  the  receipt.  It 
was  given  to  him,  and  he  refused  to  return  it,  or  to  pay  the  remainder  of  the  rent.  It 
was  proved  by  the  landlord  that  at  the  time  he  gave  the  prisoner  the  receipt,  he  thought 
the  prisoner  was  going  to  pay  him  the  rent,  and  that  he  should  not  have  parted  with  the 
receipt  unless  he  had  been  paid  all  the  rent,  but  that  when  he  put  the  receipt  into  the 
prisoner's  hands  he  never  expected  to  have  the  receipt  again;  and  that  he  didnot  want 
the  receipt  again,  but  wanted  his  rent  to  be  paid  :  Held  a  larceny,  and  that  the  fact  of 
the  tenant  giving  the  £2  made  no  difference.     Reg.  v.  Rodnay,  9  Car.  ^  P.  784. 

An  ostler  assisted  in  removing  from  a  wagon  which  stopped  at  the  inn  where  he  was 
employed,  a  quantity  of  hay  which  had  been  taken  by  the  waggoner  from  his  master's 
stables  and  put  into  tlie  wagon,  such  hay  not  being  allowed  for  the  horses  on  the  jour- 
ney:— Held,  that  the  ostler  was  properly  indicted  for  receiving,  because  as  the  hay  was 
not  always  allowed  by  tlie  master  for  the  horses,  tlie  moment  it  was  removed  by  the 
Vv'aggoner  from  the  stable  to  the  wagonaniiiio  furandi,  the  larceny  was  complete.  Reg. 
V.  Gruncell,  9  Car.  Sf  P.  365. 

A  person  hired  to  drive  cattle  to  a  particular  place,  who  sells  the  same,  and  absconds 
v.'ith  the  money,  is  guilty  of  stealing,  though  the  intention  to  sell  be  not  conceived  till 
after  taking  possession  of  the  cattle.     Reg.  v.  Jackson,  2  M.  C.  C.  R.  32. 

A  prisoner  was  employed  as  master  of  a  coal  vessel.  The  custom  of  the  trade  was 
that  he  should  receive  two-thirds  of  the  freight — he  took  the  whole  : — Held,  that  he  was 
not  a.  joint  proprietor  with  the  master,  and  that  he  was  properly  convicted  of  stealing  the 
master's  third.     Anon. '2  Lewin,  C.  C.  258.     S.  P.  Holmes^  case,  id.  256. 

If  a  person  not  being  the  servant  of  the  party  who  intrusts  him,  receive  a  parcel  contain- 
ing notes  to  take  to  a  coach-office,  and  abstract  the  notes  on  his  way  there,  and  apply 
them  to  his  use,  he  is  guilty  of  larceny.     Reg.  v.  Jenkins,  9  Car.  iSf  P.  28. 

To  constitute  ftlony,  breach  of  trust  is  not  sufficient;  there  must  be  a  felonious  taking, 
but  that  is  satisfied  by  an  act  not  warranted  by  the  purpose  for  which  the  property  was 
delivered.     Cartwright  v.  Green,  8  Ves.jun.  402. 

To  obtain  property  by  fraud,  and  under  a  preconcerted  plan  to  rob  is  felony,  but  the 
animus  furandi  must  he  found  by  the  jury.     Rex  v.  Horner,  1  Leach,  C.  C.  270. 

A  banker's  clerk  enters  a  fictitious  sum  in  the  Icgcr  to  the  credit  of  a  customer,  and 
tells  him  he  has  paid  the  sum  to  his  account,  and  on  the  faith  of  it  obtains  from  the  cus- 
tomer his  chock  on  the  bankers,  which  the  prisoner  pays  to  himself  by  bank  notes  front 
the  fill,  and  enters  in  the  waste-book  a  true  account  of  the  check-drawer  and  notes  as 
p:iid,  "to  a  man."  Tjiis  was  held  a  felonious  taking  of  the  notes  ftom  thetill.  Rex  v. 
Hammon,^  Taunt.'SOi.  2  Leach,  C.C.  im'S: 

The  assent  of  a  prosecutor  to  give  facility  to  the  commission  of  a  larceny  for  the  puri 
pose  of  detecting  the  offenders,  does  not  do  away  the  felony,  although  the  property  was 
not  taken  against  his  will.  Rex  v.  Egginton,  2  Leach,  C.  C.  913.  2  East,  P.  C.  494/ 
C66.     2  li.  c^  P.  508. 

The  owner  of  goods,  knowing  of  an  intention  in  the  prisoners  to  steal  them,  they  hav- 


HISTORIA  PLACITORUM  CORONA.  SOQ** 

regularly  and  ordinarily  these  circumstances  following  direct  in  this 
case. 

If  ./f.  thinking  he  hath  a  title  to  the  horse  of  B.  seiseth  it  as  his 
own,  or  supposing   that  B.  holds  of  him  distrains  the  horse  of  B. 

ing  plotted  so  to  do  with  liis  servant,  desired  the  servant  to  carry  on  his  business  with  a 
view  to  the  detection  of  the  thieves;  in  consequence  of  which  the  servant,  with  the 
con.sent  of  his  master,  agreed  with  the  prisoners  to  open  the  outer  door  to  them,  an(>  let 
them  intoihe  liouse,  when  tiiey  brolie  open  inner  apartments,  and  took  the  goods:  Held^ 
by  a  majority  of  the  judges,  to  be  larceny;  one  doubting,  because  of  the  owner's  assent 
and  partial  encouragement  of  the  felony  by  means  of  his  servant.     lb. 

If  a  man  steals  goods  in  one  count}',  and  carry  them  into  another,  it  will  be  larceny  in 
the  latter,  though  the  goods  are  not  carried  into  the  latter  county  until  long  after  the 
original  theft.  Rex  v.  Parkin,  1  R.  6;  M.  C.  C.  R.  45;  2  Russ.  C.  Sf  M.  174.     See  infra. 

An  indictment  for  robbing  a  mail-bag  of  letters  must  be  laid  in  the  county  where  the 
mail  was  actually  taken,  in  order  to  bring  the  case  within  the  statute;  and  cannot  be 
laid  in  the  county  where  the  prisoner  was  in  possession  of  it  only;  the  jury  finding  that 
the  letters  had  been  taken  from  tlie  bag  into  some  other  county  through  which  the  mail 
had  passed.     Rex  v.  Thomas,  2  East,  F.  C.  605.     2  Leach,  C.  C.  634. 

To  make  a  taking  felonious,  it  is  not  necessary  that  it  should  be  done  lucri  causa  ; 
taking  with  an  intent  to  destroy  will  be  sufficient  to  constitute  the  offence  of  larceny,  if 
done  to  serve  the  prisoner  or  another  person,  though  not  in  a  pecuniary  way.  Rex  v. 
Cabbage,  R.  Sf  R.  C.  C.  292.    2  Russ.  C.  6{  M.  94. 

If  a  man  steals  his  own  goods  from  his  own  bailee,  thongh  he  has  no  intent  to  charge 
the  bailee,  but  his  intent  is  to  defraud  the  king;  yet  if  the  bailee  had  an  interest  in  the 
possession,  and  could  have  withheld  it  from  the  owner,  the  taking  is  a  larceny.  Rex  v. 
Wilkinson,  R.  Sf  R.  C.  C.  470.     2  Russ.  C.  Sf  M.  156. 

If  a  part-owner  of  property  steal  it  from  the  person  in  whose  custody  it  is,  and  who  is 
responsilile  for  its  safety,  he  is  guilty  of  larceny.  Rex  v.  Bramley,  R,  Sf  R.  C.  C.  478. 
2  Russ.C  ^-  M.155. 

To  constitute  larceny  the  felonious  intention  must  exist  in  the  mind  at  the  time  tlie 
property  was  obtained;  for  if  it  be  obtained  by  fair  contract,  and  afterwards  fraudulently 
converted,  it  is  no  felony.     Rex  v.  Charlewood,  1  Leach,  C.  C.  409.    2  East,  P.  C.  689. 

If,  however,  a  fraudulent  conversion  takes  place  after  the  privity  of  contract  is  deter- 
mined, it  is  felony.     Jb. 

Obtaining  a  post-chaise  by  hiring  with  a  felonious  intent  to  convert  it  to  the  use  of  the 
hirec,  is  felony,  although  the  contract  of  hiring  was  not  for  any  definite  time.  Rex  v. 
Semple,  1  Leack,  C.  C.  420.    2  East,  P.  C.  691. 

If  a  man  who  is  hired  to  drive  cattle,  sell  them,  it  is  larceny;  for  he  has  the  custody 
only,  and  not  the  right  to  the  possession;  his  possession  is  the  owner's  possession,  though 
he  is  a  general  drover;  at  least  if  he  is  paid  by  the  day.  Rex  v.  McNamie,  I  M.  C,  C,  R, 
368. 

The  prisoner  went  into  a  shop  in  London,  and  purchased  jewelry,  and  said  he  would 
pay  in  cash;  and  the  seller  agreed  to  deliver  the  goods  at  a  coach. office  belonging  to  an 
inn  where  the  prisoner  stated  tiiat  he  lodged.  The  seller  made  out  an  invoice  and  took 
the  goods  there,  when  the  prisoner  said  he  had  been  disappointed  in  receiving  some 
money  he  expected  by  letter.  Just  afterwards,  a  two-penny  post  letter  was  put  in  his 
hands,  which  he  opened  in  the  presence  of  the  seller,  and  said  he  had  to  meet  a  friend  at 
Tow's  Cotfce-house  at  seven,  who  could  supply  the  money.  The  goods  were  left  at  the 
coach-office,  and  the  seller  went  home.  The  prisoner  had  taken  a  place  in  the  mail,  but 
he  countermanded  that,  and  absconded  with  the  goods.  The  seller  swore  that  he  con- 
sidered  the  goods  sold  if  he  got  his  cash,  but  not  before.  It  was  left  to  the  jury  to  say 
whether  the  prisoner  had  any  intention  of  buying  and  paying  for  the  goods,  or  whether 
he  gave  the  order  merely  to  get  possession  of  them  to  convert  them  to  his  own  use.  The 
jury  found  the  latter,  and  the  prisoner  was  convicted;  and  tlie  conviction  was  held  right 
by  the  twelve  judges.     Rex  v.  Campbell,  Car.  C.  L.  280;  R.  S^-  M.  C.  C.  R.  179. 

Getting  goods  delivered  into  a  hired  cart,  on  the  express  condition  that  the  price  shall 
be  paid  for  tliem  before  they  are  taken  from  the  cart,  and  then  getting  them  from  the 
cart  without  paying  the  price,  will  be  larceny,  if  the  prisoner  never  had  any  intention  of 
paying,  but  had  ub  initio  the  intention  to  defraud.     Rex  v.  Pratt,  R.  Sf  M.  C.  C.  R.  250. 

Taking  goods,  though  prisoner  has  bargained  to  buy,  is  felonious,  if  by  the  usage,  the 


609''  HISTORIA  PLACITORUM  CORONA. 

without  cause,  this  regularly  makes  it  no  felony,  but  a  trespass, 
because  there  is  a  pretense  of  title ;  but  yet  this  may  be  but  a  trick 
to  colour  a  felony,  and  the  ordinary  discovery  of  a  felonious  intent 


price  ought  to  be  paid  before  they  are  taken,  and  the  owner  did  not  consent  to  their 
being  taken,  and  tlie  prisoner,  when  he  bargained  for  them,  did  not  intend  to  pay  for 
theru,  but  meant  to  get  them  into  his  possession  and  dispose  of  them  for  his  own  benefit 
without  paying  for  them.     Rex  v.  Gilbert,  R.  Sf  M.  C.  C.  R.  185. 

If  a  person,  having  ordered  a  tradesman  to  bring  goods  to  his  house,  look  out' a  certain 
quantity,  and  ask  the  price  of  them  separate  from  the  rest,  and  then  by  sending  tlie 
tradesman  home  on  pretence  of  wanting  other  articles,  take  the  opportunity  of  running 
away  with  the  goods  so  looked  out,  with  intent  to  steal  therii,  it  is  larceny,  for  as  the 
sale  was  not  completed,  the  possession  of  the  property  still  remained  in  the  tradesman. 
Bex  V.  Skarpless,  1  Leach,  C.  C.  92 ;  2  East,  P.  C.  675. 

Where  property,  which  the  prosecutor  had  bouglit,  was  weighed  out  in  the  presence 
of  his  clerk,  and  delivered  to  his  carman's  servant  to  cart,  who  let  other  persons  take 
away  the  cart  and  dispose  of  the  property  for  his  benefit  jointly  with  that  of  the  others. 
The  carman's  servant,  as  well  as  the  others,  are  guilty  of  larceny  at  common  law. 
Eexv.  Harding,  R.  Sf  R.  C.  C.  125;  1  Russ.  C.  S(  M.  200. 

Where  the  owner  sends  goods  by  his  servant  to  be  delivered  to  -4.,  but  B.  fraudulently 
procures  the  delivery  to  himself  by  pretending  to  be  A,,  he  is  guilty  of  felony.  Rex  v. 
Wilkins,  2  East,  P.  C.  673,  1  Leach,  C.  C.  520. 

Getting  a  parcel  from  a  carrier's  servant,  by  falsely  pretending  to  be  the  person  to 
whom  it  is  directed,  if  it  be  taken  aiiimo  furandi,  it  is  larceny,  for  the  servant  has  no 
authority  to  part  with  it  but  to  the  right  person.  Rex  v.  Longstreth,  R.  Sf  M. 
C.  C.  R.  137. 

Fraudulently  obtaining  a  chest  of  tea  from  the  India  House,  though  by  means  of  a 
regular  request,  note,  and  permit,  was  holden  to  be  a  larceny.  Rex  v.  Hench,  2  Russ. 
C.  4-  M.  120;  R.  Sf  R.  C.  C.  163. 

Where  the  prisoner  having  offered  to  accommodate  the  prosecutor  witli  gold  for 
notes,  the  latter  put  down  a  number  of  bank-notes  for  the  purpose  of  their  being  ex- 
changed, which  the  prisoner  took  up  and  ran  away  with  :  Held,  a  larceny  if  the  jury 
believed  that  he  intended  to  run  away  with  them  at  the  time,  and  not  to  return  the  gold. 
Rex  v.  Oliver,  2  Russ.  C.  Sf  M.  122. 

To  obtain  a  bill  of  exchange  from  an  indorsee  under  a  pretence  of  getting  it  dis- 
counted, is  felony,  if  ihe  jury  find  that  the  indorsee  did  not  intend  to  leave  the  bill  in 
the  prisoner's  possession  witliout  the  money,  and  that  he  undertook  to  discount  with  a 
preconcerted  design  to  convert  its  produce  to  his  own  use.  Rex  v.  Aickels,  1  Leach, 
C.  C.  294  ;  2  East,  P.  C.  675. 

Where  two  planned  to  rob  the  prosecutrix  of  some  coats,  and  one  got  her  to  go  with 
him  that  he  might  get  some  money  to  buy  them  of  lier,  and  she  left  the  coats  with  the 
other,  who   immediately   absconded   with   them:     Held,  that    the    receipt    by  the    onp 
amounted  to  a  felonious  taking  of  the  coats  by  both.     Rex  v.  County,  2  Russ,  p.  ^  M.  ■ 
127-175. 

,  If  a  bureau  be  delivered  to  a  carpenfier  to  repair,  and  he  discover  money  in  a  secret 
drawer  of  it,  which  he  unnecessarily  as  to  its  repairs  breaks  open,  and  converts  the 
money  to  his  own  use,  it  is  a  felonious  taking  of  the  property,  unless  it  appear  that  he 
did  it  with  intention  to  restore  it  to  its  right  owner.  Cartwright  v.  Green,  2  Leach, 
C.  C.  952.  8  Ves.ju7i.i05. 

A  person  purchased  at  public  auction  a  bureau,  in  which  he  afterwards  discovered,  in 
a  secret  drawer,  a  purse  containing  money,  which  he  appropriated  to  his  own  use.  At 
the  time  of  the  sale,  no  person  knew  that  the  bureau  contained  any  thing  whatever  : 
Held,  that  if  the  buyer  had  exi)rcss  notice,  that  the  bureau  alone  and  not  its  contents,  if 
any,  was  sold  to  him;  or  if  he  had  no  reason  to  believe  that  any  thing  more  than  the 
bureau  itself  was  sold,  the  abstraction  of  the  money  was  a  felonious  taking,  and  he  was 
guilty  of  larceny  in  appropriating  it  to  his  own  use.  Hut  that  if  he  had  reasonable 
ground  for  believing  tiiat  he  bouglit  the  bureau  with  its  contents,  if  any,  he  had  a 
colourable  property,  and  it  was  no  larceny.     Merry  v.  Green,  7  Mee.  Sf  W.  623. 

If  a  parcel  be  accidently  left  in  a  liackncy-coach,  and  the  coachman,  instead  of 
restoring  it  to  the  owner,  detain  it,  open  it,  destroy  part  of  its  contents,  and  borrow 


HISTORTA  PLACITORUM  CORON_^.  509^^ 

is,  if  the  party  doth  it  secretly,  or  being  charged  with  the  goods 
denies  it. 

If..'?,  takes  away  the  goods  of  B.  openly  before  him  or  other  per- 
son  (otherwise  than  by  apparent  robbery)  tliis  carries  with  it  an 


money  on  the  rest,  he  is  guilty  of  felony.  Rex  v.  Wynne^  1  Leach,  C.  C,  413;  2  East, 
P.  C.  664-697;  S".  P.  Rex  v.  Sears,  1  Leach,  C.  C.  415  n. 

A  servant  clandestinely  taking  his  master's  corn,  though  to  give  to  his  master's 
horses,  is  guilty  of  larceny.  Rex  v.  Morjit,  R.  Sf  R.  C.  C.  307;  2  Russ.  C.  Sf  M.  94; 
iS.  P.  Reg.  V.  Usborne,  5  Jur.  200;  Reg.  v.  Careswell,  5  Jur.  251,  contra;  Reg.  v. 
Cole,  Id.  n. 

PuUinff  wool  from  the  bodies  of  live  sheep  and  lambs,  animo  furandi,  is  larceny. 
Rex  V.  Martin,  1  Leach,  C.  C.  171;  2  East,  P.  C.  618. 

So  it  is  larceny  to  take  the  milk  from  a  cow.    lb. 

The  prisoner  having  lifted  up  a  bag  from  the  boot  of  a  coach,  was  detected  before  he 
had  got  it  out;  and  it  did  not  appear  that  it  was  entirely  removed  from  the  space  it  at 
first  occupied  in  the  boot,  but  the  raising  it  from  the  bottom  had  completely  removed 
eacli  part  of  it  from  the  space  that  specific  part  occupied  :  Held,  that  it  was  a  com- 
plete asportation.     Rex  v.  Walsh,  1  R.  Sf  M.  C.  C.  R.U;  2  Russ.  C.  Sf  M.  96. 

To  remove  a  package  from  the  head  to  the  tail  of  a  wagon  with  a  felonious  intent  to 
take  it  away,  is  a  sufficient  asportation  to  constitute  a  larceny;  but  merely  to  alter  the 
position  of  a  package  on  the  spot  where  it  lies,  is  not.  Rex  v.  Coslet,  1  Leach,  C.  C. 
236;  2  East,  P.  C.  556.    See  Rex  v.  Cherry,  1  Leach,  C.  C.  236  n;  2  East,  P.  C.  556. 

If  a  warehouseman  lias  several  bags  of  wheat  delivered  to  him  for  safe  custody,  and 
he  take  the  whole  of  the  wheat  out  of  one  bag,  it  is  no  less  a  larceny  than  if  he  had 
severed  a  part  from  the  residue  of  the  wheat  in  the  same  bag,  and  had  taken  only  that 
part,  leaving  the  remainder  of  the  wheat  in  the  bag.  Rex  v.  Brazier,  R.  S;  R.  C.  C. 
337;  2  Russ.  C.  Sf  M.  134. 

What  does  not  amount  to  a  taking. —  A.,  in  consequence  of  seeing  an  advertisement, 
applied  to  B.  to  raise  money  for  him.  B.  said  he  would  procure  him  i^5000,  and  pro- 
duced from  his  pockct-booli  10  blank  6s.  bill-stamps,  across  each  of  which' ^.  wrote, 
"Accepted,  payable  at  Messrs.  P.  Sf  Co.  189  F.  street,  London,"  and  signed  his  name. 
B.,  who  was  present,  took  up  the  stamps,  and  nothing  was  said  as  to  what  was  to  be 
done  with  tliem.  Afterwards  bills  of  excjiange  for  X"500  each  were  drawn  on  these 
stamps,  and  B.  put  them  into  circulation  :  Held,  that  these  stamps,  with  the  accept- 
ances thus  written  upon  them,  were  neither  "  bills  of  exchange,"  "orders  for  the  pay- 
ment of  money,"  or  "securities  for  money;"  and  held  also,  that  a  charge  of  larceny 
against  B  for  stealing  the  stamps,  and  for  stealing  the  ^o^er  on  which  the  stamps  were, 
would  not  be  sustained,  as  this  was  no  larceny.    Rex  v.  Hart,  6  Ca.r  Sf  F.  106. 

Stealing  by  the  wife  of  a  member  of  a  friendly  society,  money  of  the  society,  de- 
posited in  a  box  in  the  husband's  custody,  kept  locked  by  the  stewards,  is  not  larceny. 
Rex  v.  Millis,  1  JVi.  C.  C.  R.  375. 

Clandestinely  taking  away  articles  to  induce  the  owner  (a  girl)  to  fetch  them,  and 
thereby  to  give  the  prisoner  an  opportunity  to  solicit  her  to  commit  fornication  with 
him,  is  not  felonious.     Rex  v.  Dickenson,  R.  Sf  R.  C.  C.  420;  2  Russ.  C.  Sf  M.  98. 

If  a  larceny  be  committed  out  of  the  kingdom,  though  within  the  king's  dominions, 
(e.  g.  in  Jersey)  bringing  the  things  stolen  into  this  kingdom,  will  not  make  it  larceny 
here.    Rex  v.  Prowes,  M.  C.  C.  R.  349.  &  P;  Reg.  v.  Madge,  9  Car.  Sf  P.  29 ;  see  infra. 

A.  delivered  his  watch  to  B.  to  be  repaired,  instead  of  repairing  it  he  sold  it,  and  A. 
being  informed  of  this,  told  B.  that  he  would  either  have  his  watch  or  the  money:  Held, 
no  felony.    Rex  v.  Leny,  4  Car.  Sf  P.  241. 

Where  a  g^rson  gave  his  servant  a  £5  note  to  get  changed,  and  he  got  the  note  changed 
and  made  off  with  the  change:  Held  to  be  no  larceny,  but  an  embezzlement.  Rex  v. 
Sullens,  Car.  C.  L.  319 ;  R.  Sf  M.  C.  C.  R.  129. 

A.  had  consigned  three  trusses  of  hay  to  B.  and  had  sent  them  by  the  prisoner's  cart; 
the  prisoner  took  away  one  of  the  trusses,  which  was  found  in  his  stable  not  broken  up. 
Hdd  no  larceny,  as  the  prisoner  did  not  break  up  the  truss.  Rex  v.  Pratley,  5  Car.  Sf 
P.  533. 

If  a  poacher  take  a  gun  by  force  from  a  gamekeeper  under  the  impression  that  it  may 


509^'  HISTORIA  PLACITORUM  CORONA. 

evidence  only  of  a  trespass,  because  done  openly  in  the  presence  of 
the  owner,  or  of  other  persons  that  are  known  to  the  owner. 

l(  ji.  leaves  his  harrow  or  his  plovV-strings  in  the  field,  and  B. 
having  land  in  the  same  field  useth  it,  and  having  done,  either  return- 
be  used  against  him,  it  is  no  felony,  thoug-Ii  he  state  afterwards  that  he  will  sell  the  gun, 
and  it  be  not  subsequently  heard  of.    Rex  v.  HoUowny,  5  Car.  S\-  P.  524. 

It  is  not  an  indictiible  offence  to  take  away  a  chattel,  unless  such  a  degree  of  force  be 
used  as  will  make  it  an  offence  against  the  public,  and  the  indictment  must  show  that 
fact.    Rrx  V.  Gardiner,  1  Russ.  C.  Sf  M.  52. 

To  obtain  from  a  person  his  note  of  hand  by  threatening  with  aknife  held  to  his  throat 
to  take  away  his  life,  was  not  a  felonious  stealmg  of  the  note  within  slat.  2.  Geo.  2.  c. 
25;  for  it  never  was  of  value  to  or  in  the  peaceable  possession  of  such  person.  Rex  v. 
FMpse,  2  Leach,  C.  C.  673 ;  2  East,  P.  C.  599. 

If  a  person  be  induced  to  play  at  hiding  under  the  hat,  and  stake  down  his  money 
voluntarily  on  the  event,  meaning  to  receive  the  stake  if  he  wins,  and  to  pay  it  if  he  loses, 
the  taking  up  of  the  stake  so  deposited  by  him  on  the  table,  is  not  a  felonious  taking, 
although  the  taker  was  made  to  appear  to  win  the  money  by  fraudulent  conspiracy  and 
collusion.     Rex  v.  Nicholson,  2  Leach,  C.  C.  610 ;  2  East,  P.  C.  669. 

Where  a  prisoner  took  a  packet  of  diamonds  to  a  pawnbroker,  with  whom  he  had  pre- 
viously pledged  a  broach;  and  having  agreed  with  the  shopman  for  the  amount  of  the 
loan,  sealed  tlicm  up  and  received  the  amount,  deducting  the  amount  for  which  the 
broach  was  pledged;  but  instead  of  giving  the  packet  of  diamonds  to  the  shopman,  gave 
him  a  packet  of  similar  appearance,  containing  only  glass  :  Held,  that  it  was  not  larceny, 
but  only  a  fraud.    Rex  v.  Meilheini,  Car.  C.  L.  281. 

If  a  pawnbroker's  servant,  who  lias  a  general  authority  from  his  master  to  act  in  his 
business,  delivers  up  a  pledge  to  the  pawner  on  receiving  a  parcel  from  the  pawner, 
which  he  supposes  contains  valuables  he  has  just  seen  in  the  pawner's  possession  in  a 
similar  parcel,  the  receipt  of  the  pledge  by  the  pawner  is  not  a  larceny.  Rex  v.  Jack- 
son, R.  S{  M.  C.  C.  fl.  119. 

Where  a  letter  enclosing  a  check  was  directed  to  "  James  Mucklow,  St.  Marliri's  Lane, 
Birminghnm,"  and  no  person  of  that  name  lived  there,  but  the  prisoner  lived  about  ten 
yards  from  St.  Martin's  Lane  and  another  James  Mucklow  lived  in  New  Hall  street, 
and  the  prisoner,  in  consequence  of  a  message  left  by  the  postman,  got  the  letter  from 
the  post-office  and  appropriated  the  check  to  his  own  use :  Held,  that  it  was  not  a  felo- 
nious taking.     Rex  v.  Mucklow,  Car.  C.  L.  280;  R.  Sf  M.  C.  C.  R.  160. 

A  prisoner  cannot  be  found  guilty  of  stealing  goods  if  it  appear  that  he  could  not  other- 
wise get  them  than  by  the  delivery  of  the  prosecutor's  wife,  in  which  case  it  may  be  pre- 
sumed that  he  received  them  from  her.  Rex  v.  Harrison,  1  Leach,  C.  C  47;  2  East,  P. 
C.  5.59. 

Where  a  jury  found  that  one  who  assisted  in  taking  another's  goods  from  a  fire  in  his 
presence,  but  without  his  desire,  and  who  afterwards  concealed  and  denied  having  them, 
yet  took  them  honestly  at  first,  and  that  the  evil  intention  to  convert  them  came  on  the 
taker  afterwards,  it  was  held  no  larceny.  Rex  v.  Leigh,  2  East,  P.  C.  694;  1  Leach,  C. 
C.  411.  n. 

If  tlie  owner  parts  with  possession  of  goods  for  a  special  purpose,  and  the  bailee,  wherj 
that  ])urpose  is  executed,  neglects  to  return  them,  and  afterwards  disposes  of  them,  if  he 
had  not  a  felonious  intention  when  he  originally  took  them,  his  subsequent  withholding' 
and  disposing  of  them  will  not  constitute  a  new  felonious  taking,  or  make  him  guilty  of 
felony.    Rex  v.  Banks,  R.  i^  R.  C.  C.  411 ;  2  Russ  C.  Sf  M.  1.32. 

Sernh'e,  that  if  a  master  of  a  foreign  vessel,  captured  by  a  British  ship  and  carried  into 
port,  takes  goods  from  the  vessel  after  she  has  been  condemned  as  a  prize,  it  is  not  a 
larceny  unless  there  is  evidence  that  he  took  them  for  the  purpose  of  converting  them  to 
his  private  use.  Rex  v.  Van  Mayen,  R.  Sf  R.  C.  (7.  118.  2.  Russ.  C.  ^-  M.  10^. 

If  a  tradesman  sell  a  stranger  goods,  enter  them  to  his  debit,  jjind  makes  out  a  bill  of 
parcels  for  them  as  goods  sold,  and  the  goods  are  delivered  to  the  purchaser  by  the  servant 
of  the  seller,  who  receives  bills  for  them,  it  is  not  felony,  altiiough  the  tradesman  sold 
tliein  for  ready  money,  never  intending  to  give  the  stranger  credit,  and  it  appear  that  he 
had  taken  the  apartments  to  which  he  ordered  them  to  be  sent  for  the  purpose  of  obtain- 
ing them  fraudulently.  Rex  v.  I'arkn-,  2  Leach,  C.  C.  614.  2  East,  P.  C.  671. 

Wiiere  the  prisoner  obtaiued  possession  of  a  hat  from  the  maker,  which  had  been 


HISTORIA  PLACITORUM  CORONiE.  509* 

eth  them  to  the  place  where  they  were,  or  acquaints  B.  with  it,  this 
is  no  felony,  but  at  most  a  trespass, 

\(\ji.  and  B.  being  neighbours,  and  t/^.  having  an  horse  on  the 
common,  and  B.  having  cattle  there,  that  lie  cannot  readily  find, 


ordered  by  a  third  person,  by  sending-  a  boy  for  it  in  the  nnme  of  such  person.  Held, 
it  did  not  amount  to  larceny.  Rex  v.  Adums,  2  Russ.  C.  Sf  M.  113.  R.  Sf  R.  C.  C.  225. 

Wiiere  goods  in  a  shop  were  lied  to  a  string  whicJi  was  fastened  by  one  end  to  the 
bottom  of  the  counter,  and  a  thief  took  up  the  goods  and  carried  Ihem  away  towards  the 
door,  as  far  as  the  string  would  permit:  Held,  that  being  no  severenee  there  was  no  as- 
portation, and  consequently  it  was  not  a  felony.  Anon.  2  East,  P.  C.  556.  1  Leach,  C.  C. 
321.  n. 

Where  the  prisoner  set  up  a  long  bale  upon  end,  in  a  wagon,  and  cut  the  wrapper  all 
the  way  down,  with  intent  to  remove  tlie  contents,  but  was  apprehended  before  he  had 
taken  any  thing  out  of  it :  Held,  that  there  was  not  a  sufficient  asportation  to  constitute 
a  larceny.  Rex  v.  Cherry,  1  Leach,  C.  C.  236.  n.  2  East.,  P.  C.  556. 

If  a  master  and  owner  of  a  siiip  steal  some  of  the  goods  delivered  to  him  to  carry,  it 
is  not  larceny  in  him,  unless  he  take  the  goods  out  of  their  packages.  Rex  v.  Madox,  R. 
Sf  R.  C.  C.  92.  2  Russ.  C.  Sf  M.  135. 

Nor  if  larceny,  would  it  have  been  a  capital  offence  within  stat.  24,  Geo.  2,  C.  45.  lb. 

If  one  employed  to  carry  goods  for  hire,  appropriate  them  to  his  own  us^,  but  does 
not  break  bulk,  this  is  no  larceny,  although  the  person  so  employed  was  not  a  common 
carrier,  but  was  only  employed  in  this  particular  instance.  Rex  v.  Fletcher,  4  Car.  Sf 
P.  544. 

Where  a  person  received  a  check  from  Sir  T.  P.  to  buy  Exchequer-bills,  and  he  car- 
ried it  to  the  banker's,  got  the  cash,  and  embezzled  part,  on  being  indicted  for  stealing: 
Held  first,  that  as  there  was  no  fraud  to  induce  Sir  T.  P.  to  deliver  the  check,  it  was  not 
larceny,  although  the  prisoner  intended  to  misapply  the  property  when  he  took  it,  and 
misapplied  accordingly.  Secondly,  that  as  Sir  T.  P.  never  had  possession  of  the  mo- 
ney  received  at  the  banker's,  but  by  the  hands  of  the  prisoner,  tlie  indictment  could  not 
be  supported.  Rex  v.  Wnlsh,  R.  Sf  R.  C.  C.  215.  2  Leach,  C.  C.  1054.  4  Taunt.  258. 
But  see  7^-8  Geo.  4.  c.  29, 

A.  v/as  indicted  at  common  law,  for  simple  larceny,  in  stealing  in  Middlesex  a  quan- 
tity of  lead.  It  appeared  that  the  lead  was  stolen  from  the  roof  of  the  church  oi  Iver,  in 
BvcJiinghamshire.  The  prisoner  was  indicted  at  the  central  crijninal  court  which  has 
jurisdiction  in  Middlesex,  (under  4^5  Will.  4.  c.  36.)  but  not  in  Buckinghamshire, 
Held,  that  he  could  not  be  convicted  there  on  the  ground  that  the  original  taking  not  being 
a  larceny,  but  created  by  statute  a  felony,  the  subsequent  possession  could  not  be  con- 
eidered  a  larceny.  Rex  v.  Millar,  7  Car.  Sf  P.  665. 

A  drover  of  cattle  was  employed  by  a  grazier  in  the  country,  to  drive  eight  oxen  to 
London,  his  instructions  were,  that  if  he  could  sell  them  on  the  road  he  might :  and  those 
he  did  not  sell  on  the  road  he  was  to  take  to  a  particular  salesman  in  Stnilhjicld  market, 
who  was  to  sell  them  for  the  grazier.  The  drover  sold  two  on  the  road,  and  instead  of 
taking  the  remaining  six  to  the  salesman,  drove  them  himself  to  Smithjield  market,  and 
sold  them  there,  and  received  the  money,  which  he  applied  to  his  own  use  :  Held,  that  he 
could  not  be  convicted  either  of  larceny  or  embezzlement.  Reg.  v.  Goodbudy,  8  Car.  Sf 
P.  665. 

Where  in  a  case  of  ring-dropping  the  prisoners  prevailed  on  the  prosecutor  to  buy  the 
share  of  the  other  party,  and  the  prosecutor  was  prevailed  on  to  part  with  his  money — 
intending  to  part  with  it  forever,  and  not  with  the  possession  of  it  only:  Held,  that  this 
was  not  a  larceny,  Reg.  v.  Willson,  8  Car,  ^  P.  111. 

A.  was  treating  B.  at  a  beer-house,  and  A.  wishing  to  pay,  put  down  a  sovereign,  de- 
siring  ttie  landlady  to  give  him  change ;  she  could  not  do  so,  and  B.  said  he  would  go 
out  and  get  change.  A.  said,  "  You  wont  come  back  with  tlie  change."  B.  replied, 
"  Never  fear."  A.  allowed  B.  to  take  up  the  sovereign,  and  B.  never  returned  either  with 
it  or  the  change  :  Held  no  larceny,  as  A.  having  permitted  the  sovereign  to  be  taken  away, 
for  the  purpose  of  being  changed,  he  could  never  have  expected  to  receive  back  the  spe- 
cific coin,  and  had,  therefore,  divested  himself  of  the  entire  possession  of  it.  Reg.w  Tho. 
7nas,  9  Car.  Sf  P.  HI. 

It  is  not  larceny  for  miners,  employed  to  bring  ore  to  the  surface,  and  paid  by  tha 


509^  HISTORIA  PLACITORUM  CORONA. 

•takes  lip  the  horse  of  A.  and  rides  about  to  find  his  cattle,  and  hav- 
ing done,  turns  off  the  horse  again  in  the  common,  this  is  no  felony, 
but  at  most  a  trespass. 

So  if  my  servant,  without  my  privity,  takes  my  horse,  and  rides 
abroad  ten  or  twelve  miles  about  his  own  occasions,  and  returns 
again,  it  is  no  felony,  but  if  in  his  journey  he  sells  my  horse,  as  his 
own,  this  is  declarative  of  his  first  taking  to  be  felonious,  and  animo 
JurandL^S] 

But  in  cases  of  larciny  the  variety  of  circumstances  is  so  great,  and 
the  complications  thereof  so  mingled,  that  it  is  impossible  to  prescribe 
all  the  circumstances  evidencing  a  felonious  intent,  or  the  contrary, 
but  the  same  must  be  left  to  the  due  and  attentive  consideration  of 
the  judge  and  jury,  wherein  the  best  rule  is,  171  dubiis,  rather  to 
incline  to  acquittal  than  conviction. 

IV.  It  must  be  of  goods  personal,  for  otherwise  no  felony  can  Be 
committed  by  taking  them. [9] 

1.  Therefore  of  chatties  real  no  felony  can  be  committed, 
r  510  ]]  and  therefore  the  taking  away  of  a  ward  cannot  be  felony, 
nor  of  a  box  or  chest  of  charters,  that  concern  land.  10  E.  4. 
14.  d.(w.)[10.] 

(n)  Nor  can  felony  be  committed  of  bonds,  notes,  or  other  writings,  that  are  securities 
for  a  debt,  because  they  derive  their  value  from  choses  en  action,  which  cannot  be  stolen. 
DalL  New  Edit.  p.  501,  8  Co.  Rep.  33.  but  by  a  late  statute  2  Geo.  II.  cap.  25.  the  steal- 
ing of  bonds,  bills,  notes,  &c.  is  made  felony  with  or  without  the  benefit  of  the  clergy, 
'in  the  same  manner  as  if  the  offender  had  stolen  goods  of  the  like  value,  with  the  money 
secured  by  such  bonds,  &c. 


owners,  according  to  the  quantity  produced,  to  remove  from  the  heaps  of  other  miners 
ore  produced  by  them,  and  add  it  to  tiieir  own,  in  order  to  increase  their  wages,  the  ore 
still  remaining  in  the  possession  of  the  owners.  Rex  v.  Webb,  1  M.  C.  C.  R.  431.  The 
cases  of  Rex  v.  Fttrie,  I  Leach,  C.  C.  294.  2  East,  P.  C.  740.  and  Rex  v,  Farley,  2  East, 
P.  C.  740,  relate  to  petty  larceny,  which  is  not  now  a  distinct  offence  in  England. 

[8]  In  Cramp's  case,  1  Car.  Sf  Pay.  658.  where  one  took  a  horse  and  rode  it  away, 
and  then  turned  it  loose,  and  the  horse  furniture  was  offered  for  sale,  it  was  held  to  be  a 
larceny  of  the  furniture  and  not  of  the  horse.  See  also  Phillips's  case,  2  Russ.  C.  Sf  AL 
97.  2  East's  P.  C.  662.    Rose,  on  Cr.  Ev.  472. 

[10]  See  Walker's  case.  Mood.  R.  155.  Vyse's  case.  Id.  218.  Clarke's  case,  R.  Sf  R. 
181.  U.  S.\.  Moullon.  5  Mason  Rep.  557.  Westhur's  case,  1  Leach,  C.  C.  12.  U.  S.  y, 
Davis,  5  Mason's  R.  356.    Bingley's  case,  5  Car.  Sf  Pay.  603. 

[9]  Of  the  thing  taken. — It  is  enough  to  make  the  crime  larceny  that  the  thing  stolen 
is  of  any  pecuniary  value,  or  valuable  to  the  owner  or  person  having  a  general  or  spe- 
cial property  or  interest  in  it,  or  right  of  possession  of  it,  though  it  be  not  of  any  value 
to  sell.  Rose,  on  C.  Evid.  5\2;  Phippoe's  case,  2  Leach,  C.  C.  673;  Bryant's  case, 
2  S.  C.  Law.  Repos.  26t);  The  People  v.  Holbrook,  13  Johns.  R.  90;  2  Russ.  on  Crim. 
62;  Payne  v.  The  People,  6  Johns.  R.  103. 

At  common  law  a  chose  in  action  is  not  the  subject  of  larceny.  Culp.  v.  The  State, 
1  Port,  R.  33. 

But  semble  that  bank-notes  were  not  chattels  within  the  meaning  of  Stats.  3  Will.  ^ 
M.  c.  9,  and  5  Anne,  c.  31.  Rex  v.  Morris,  1  Leach,  C.  C.  468;  .2  East,  P.  C.  748; 
eee  post  in  this  note. 

Money  was  not  within  the  meaning  of  the  words  "goods  and   chattels,"  in  the 


HISTORIA  PLACITORUM  CORONA.  510^ 

2.  Neither  can  larciny  be  committed  of  things,  that  adhere  to  the 
freehold,  as  trees,  grass,  bushes,  hedges,  stones  or  lead  of  a  house,  or 
the  hke.(o) 

(0)  But  now  by  4  Geo.  II.  cap.  32.  it  is  felony  to  steal,  rip,  cut,  or  break  with  intent  to 
steal  any  lead,  iron  bar,  iron  gate,  iron  rail  or  palisado,  fixed  to  any  house,  or  out-house, 
or  fences  thereunto  belonging,  and  every  person,  who  shall  be  aiding  or  abetting,  or  shall 
buy  or  receive  any  such  lead,  S^c.  knowing  the  same  to  be  stolen,  is  subject  to  the  same 
punishment. 


Statutes  3  Will.  4-  M.  c.  9,  and  5  Anne,  c.  31.  Rex  v.  Guy,  1  Leach,  C.  C.  241 ;  2  East 
P.  C.  748;  Rex  v.  Davidson,  1  Leach,  C.  C.  242.  ' 

But  rc-issuable  notes,  if  they  cannot  properly  be  called  valuable  securities  whilst  in 
the  hands  of  the  maker,  may  be  called  (in  an  indictment)  "goods  and  chattels." 
U.  S.  V.  Moulton,  5  Mason  R.  537;  Rex  v.  Vyse,  Ry.  4-  M.  C.  C.  218,  cited  infra. 

A  check  on  a  banker's,  written  on  unstamped  paper,  payable  to  D.  F.  J.^  and  not 
made  payable  to  bearer,  is  not  a  valuable  security  within  7  4' 8  Geo.  4.c.  29.  s.  5.  Rex  v. 
Yeates,  Car.  C.  L.  273,  333,  R.  Sf  M.  C.  C.  R.  170.     Held,  not  to  be  a  felony  within 

2  Geo.  2  c.  25,  to  steal  bankers'  notes  completely  executed,  but  which  have  never  been 
put  into  circulation,  on  tiie  ground  that  no  money  was  due  upon  them.  Anon.  2  Russ. 
C.  S(  M.  147;  2  Leach,  C.  C.  1061  n. 

It  has  been  held  in  this  country,  that  bank  bills  complete  in  form,  but  not  issued,  are 
the  property  of  the  bank ;  and  may  be  so  treated  in  criminal  proceedings  for  re- 
ceiving   them,  with   knowledge  of  their  having  been  stolen.      The  People  v.    Wiley, 

3  HiWs  N.  Y.  Rep.  194. 

Stealing  re-issuable  notes  after  they  have  been  paid,  and  before  they  have  been  re- 
issued, did  not  subject  the  party  to  an  indictment  on  the  2  Geo.  2.  c.  25,  for  stealing 
notes,  but  he  may  be  indicted  for  stealing  paper  with  valuable  stamps  upon  it.  Rex.  v. 
Clark,  R.  4-  R.  C.  C.  181,  2  Leach,  C.  C.  1036. 

Country  bankers'  notes  which  have  been  paid  by  the  bankers  in  London,  at  whose 
house  they  were  made  payable,  and  by  them  sent  down  to  country  bankers  to  be  re- 
issued, on  the  way  they  were  stolen,  and  the  prisoner  was  indicted  for  receiving 
them.  The  indictment,  in  some  counts,  charged  the  notes  to  be  valuable  securities, 
(see  Wilson  v.  The  State,  1  Porter,  R.  118,)  and  in  others  as  pieces  of  paper  of  the 
goods  and  chattels  of  the  country  bankers.  The  prisoner  was  convicted,  and  the 
conviction  held  right.  Some  of  the  judges  doubted  whether  these  notes  were  to  be  con- 
sidered as  valuable  securities,  but  if  not  they  all  thought  they  were  goods  and  chattels. 
Rex  v.  Vyse,R.  Sf.  M.  C.  C.  218. 

Exchequer  bills,  although  signed  by  a  person  not  authorized  to  do  so,  are  securities 
and  effects  within  the  Statute  15  Geo.  2  c.  13.  s.  12.  Rex  v.  Aslett,  1  N.R.  I;  2  Leach, 
C.  C.  958 ;  R.  Sf  R.  C.  C.  67. 

The  halves  of  country  bank-notes,  sent  in  a  letter,  are  goods  and  chattels,  and  a  per- 
son who  steals  them  is  indictable  for  larceny.     Rex  v.  Mead,  4  Car.  Sf  P.  535. 

Dollars  or  Portugal  money,  not  current  by  proclamation,  are  not  goods  within  the 
meaning  of  the  24  Geo.  2.  c.  45.  Rex  v.  Leigh,  1  Leach,  C.  C.  52 ;  S.  P.  Rex  y.  Grimes, 
2  East,  P.  C.  646. 

A  larceny  may  be  committed  of  window-sashes,  which  are  neither  hung  nor  beaded 
jnto  the  frames,  but  merely  fastened  by  lathes  nailed  across  the  frames  to  prevent  their 
shaking  out;  as  they  are  not  fixed  to  the  freehold.  Rex  v.  Hedges,  1  Leach,  C.  C.  201; 
2  East,  P.  C.  590  n. 

Piratically  stealing  a  ship's  anchor  and  cable  is  a  capital  offence  by  the  marine  laws, 
and  triable  under  the  28  Hen.  8.  c.  15;  39  Geo.  3.  c.  37,  not  extending  to  this  case. 
Rex  V.  Curling,  R.  ^  R.  C.  C.  123. 

And  the  stealing  is  equally  an  offence,  although  the  master  of  the  vessel  concur  in  it, 
and  although  the  object  is  to  defraud  the  underwriters  for  the  benefit  of  the  owners,    lb. 

The  Ownership. — Property  cannot  be  laid  in  a  person  who  has  never  had  either  real  or 
constructive  possession.     Rex  v.  Adams,  R.  S^  R.  C.  C.  225.    2  Russ.  C.  4-  M.  113. 
In  an  indictment  for  larceny  the  property  stolen  may  be  described  as  the  real  owner's 


510''  HISTORIA  PLACITORUM  CORONiE. 

But  if  they  are  severed  from  the  freehold,  as  wood  cut,  grass  in 
cocks,  stones  digged  out  of  a  quarry,  then  felony  may  be  committed 
by  stealing. of  tliem,  for  they  are  personal  goods.  IS  //.  8.  2.  b.  12. 
8  E.  3.  Coron.  119. 


although  it  was  never  actually  in  his  possession,  but  in  the  possession  of  his  agent  only. 
Rex  V.  Remnant,  R.  6(  R.  C.  C.  136.    2  Rvss.  C.  4-  M.  168. 

The  wife  of  ^.  was  employed  by  her  fatlier  to  sell  sheep  and  receive  the  amount  at  K. 
She  did  so;  but  before  she  left  A'. a  £5  note  wliich  she  received  in  payment  for  the  sheep 
was  stolen  from  her: — Hehl,  that  in  an  indictment  for  a  larceny  the  note  was  properly 
described  as  the  property  of  the  husband.     Rex  v.  Roberts,  7  Car.  Sf  P.  485. 

In  an  indictment  for  larceny  of  goods,  the  property  of  a  peer  who  is  a  baron,  the  goods 
may  be  laid  as  the  goods  and  chattels  of"  G.  T.  R.  Lord  Z>."  without  styling  him  Baron 
D.  although  the  more  proper  way  to  describe  the  peer  is  by  his  ciiristian  name  and  his 
degree  in  the  peerage  as  duke,  earl,  baron,  or  the  like.  Reg,  v.  Pitts,  8  Car.  Sf  P.  771. 
S.  P.  Reg.  V,  Caleij,  5  Jur.  709. 

If  goods  seized  under  a  writ  ofji.fa.  are  stolen,  they  may  be  described  as  the  goods 
of  the  party  against  whom  the  writ  issued ;  for  though  they  are  in  custodid  legis,  the 
original  owner  continues  to  have  a  property  in  them  till  they  are  sold.  Rex,  v.  Eadslall, 
2  Russ.  C.  Sf  M.  158.  197.  An  indictment  for  stealing  the  wearing  apparel  of  a  son 
who  is  an  apprentice  to  his  father,  and  furnished  with  his  clothes  in  pursuance  of  his 
indenture  must  lay  them  to  be  the  propert)?  of  the  son  and  not  of  the  father.  Rex  v. 
Forsgate,  1  Leach,  C,  C,  463. 

In  an  indictment  for  stealing  property  which  had  belonged  to  a  deceased  person  who 
appointed  executors  who  would  not  prove  the  will,  it  was  held  the  property  must  be  laid  in 
the  ordinary,  and  not  in  a  person  who  alter  the  commission  of  the  offence,  but  before  the 
indictment,  had  taken  out  letters  of  administration  with  the  will  annexed,  because  the 
rights  of  an  administrator  only  commence  from  the  date  of  the  letters  as  distinguished 
from  those  of  an  executor,  which  commence  not  from  the  granting  of  the  probate,  but 
from  the  death  of  the  testator.     Rex  v.  Smith,  7  Car.  Sf  P.  147. 

Where  two  had  jointly  stock  upon  a  farm,  and  one  died  leaving  several  children: — 
Held,  that  the  property  in  sheep  stolen  was  properly  alleged  to  be  in  the  survivor  and  the 
children,  the  former  swearing  that  he  considered  himself  to  hold  one  moiety  for  the  bene- 
fit of  the  latter.     Rex  v.  Scott,  2  East,  P.  C.  655.    R.  S(  R.  C.  C.  13. 

Semble,  that  the  property  might  have  been  laid  in  the  survivor  alone  as  he  was  in  pos- 
session of  tlie  children's  moi.ety  as  their  agent.     lb. 

D.  and  C.  were  partners,  C.  died  intestate,  leaving  a  widow  and  children  ;  from  the 
time  of  his  death  the  widow  acted  as  partner  with  D.  and  attended  the  business  of  the 
shop.  Three  weeks  after  C's  death  part  of  the  goods  were  stolen  ;  they  were  described 
in  the  indictment  as  the  goods  of  D.  and  the  widow: — Held,  that  the  description  was 
right.     Rex  v.  Galy,  R.  &,■  R.  C.  C.  178.    2  Russ.  C.  Sf  M.  161. 

The  goods  in  a  dissenting  chapel  vested  in  trustees,  cannot  be  described  in  an  indict- 
ment as  the  goods  of  a  servant  who  has  merely  the  custody  of  the  chapel,  and  things  in 
it  to  clean  and  keep  in  order,  althougli  he  has  the  key  of  the  chapel,  and  no  other  person 
but  the  minister  has  another  key.  Rex  v.  Hutchinson,  R.  Sf  R,  C,  C,  412.  2  Russ, 
C.  SfM.  158. 

A  bible  had  been  given  to  a  society  of  Wesleyans ;  and  it  had  been  bound  at  the  ex- 
pense  of  the  society.  B.  stated  that  he  was  one  of  the  trustees  of  the  chapel,  and  also  a 
member  of  the  society.  No  trust-deed  was  produced  : — Held,  that  in  an  indictriient  foi* 
stealing  the  bible  the  property  was  rightly  laid  in  B.  and  others.  Rex  v.  Boulton,  5  Car, 
Sf  P.  537. 

An  unqualified  person  may  have  a  sufficient  legal  possession  of  game  to  support  an  in- 
dictment for  stealing  it  from  him.     Anon.  2  Russ.  C.  Sf  M.  152. 

A  box  belonging  to  a  benefit  society  was  stolen  from  a  r(5om  in  a  public  iiouse.  Two 
of  the  stewards  had  keys  of  this  box;  and  by  the  rules  of  the  society  the  landlord  ought 
to  have  had  a  key,  but  in  fact  he  had  not.  Held,  that  the  prisoner  might  be  convicted 
on  a  count  laying  the  property  in  the  landlord  alone.     Rrx  v.  Wy7ner,  4  Car.  Sf  P.  391. 

An  indictment  for  stealmg  goods  may  under  the  55  Geo.  III.  c.  137,  state  them  to  be 
the  goods  of  the  overseers  of  the  poor  for  the  time  being  of  the  parish  of  A.;  for  this  will 


HISTORIA  PLACITORUM  CORONiE.  SIO-^ 

Bat  if  a  man  come  to  steal  trees,  or  the  lead  of  a  church  or  house, 
and  sever  it,  and  after  about  an  hour's  time,  or  so,  come  and  fetch  it 
away,  this  hatli  been  held  felony,  because  the  act  is  not  conlinuated 
but  interpolated,  and  in  that  interval  the  property  lodgeihin  the  right 

import  that  they  belong^ed  at  the  time  of  the  theft  to  the  persons  who  were  the  then  over- 
seers.    Hex  V.  Went,  R.  Sf  R.  C.  C.  359.    2  Russ.  G.  Sf  M.  167. 

In  stealing  from  the  Invahd-office  at  Chelsea,  the  property  must  be  laid  in  the  house 
of  the  king.     Rex  v.  Peyton,  1  Leach,  C.  C.  324.  2  East,  l\  C.  501.  ■ 

Goods  belonging  to  a  gnest  stolen  at  an  inn  may  be  laid  to  be  the  property  either  of  the 
innkeeper  or  guest.     Rex  v.  Todd,  1  Leach,  C  C  557.  n. 

So  goods  stolen  from  a  washerwoman,  may  be  laid  to  be  her  property.  Rex  v.  Par- 
leer,  1  Leach,  C.  C.  357,  n. 

So  in  the  case  of  an  agister  who  takes  in  sheep  to  agist  for  another,  they  may  be  laid 
to  be  his  property.     Rex  v.  Woodward,  1  Leach,  C.  C.  357  n.;  2  East,  P.  C.  G53. 

The  coach-glass  of  a  gentleman's  coach  standing  in  a  coachmaster's  yard,  may  be  laid 
to  be  the  property  of  the  coachmaster.  Rex  v.  Taylor,  1  Leach,  C.  C.  356 ;  2  East,  P, 
C.  653. 

The  property  in  goods  stolen,  held  to  be  properly  alleged  to  be  in  the  driver  of  a 
coach  from  the  boot  of  which  they  were  taken*  Rex  v.  Deakin,  2  East,  P.  C.  653 ;  2 
Leacfi,  C.  C.  862. 

In  larceny,  the  goods  of  a  furnished  lodgings  must  be  described  as  the  lodger's  goods, 
not  as  the  goods  of  the  original  owner.  Rex  v.  Belstead,  R.  S(  R.  C  C  411;  2  Russ.  C. 
Sf  M.  154;  Rexv.  Brunswick,  1  R.  Sf  M.  C.  C.  R.26;  2  Russ.  154. 

If  a  corn  factor  purchases  a  ship  luden  with  corn,  and  send  his  lighter  to  fetch  it  from 
the  ship  to  his  wharf,  a  delivery  of  the  corn  on  board  the  lighter  puts  it  into  the  possession 
of  the  corn  factor,  altliough  the  lighter-man  never  delivers  it  at  the  factor's  wharf.  Rex 
V.  Spears,  2  Leach,  C.  C.  825 ;  2  East,  P.  C.  568. 

If  a  corn  factor  purchase  the  cargo  of  a  vessel  laden  with  corn,  and  send  his  servant  with 
a  lighter  to  fetch  it  from  the  ship,  in  loose  bulk,  and  the  servant  contrive  to  have  a  certain 
portion  of  it  put  into  sacks  by  the  meters  on  board  the  ship,  and  take  the  corn  so  sacked 
feloniously  away  in  the  lighter  immediately  from  the  ship,  he  may  be  indicted  for  steal- 
ing tlie  property  of  tlie  corn  factor,  although  it  was  never  put  into  his  lighter,  or  other- 
wise reduced  into  the  corn  factor's  possession.  Rex  v.  Ahrahdt,  2  Leach,  C  C  824  ; 
2  East,  P.  C.  569. 

An  indictment  for  larceny,  laying  the  goods  stolen  to  be  the  property  of  Victory  Ba. 
roness  Turkheim,  is  good,  although  her  name  is  Selinda  Victoire.  Rex  v.  Sulls,  2  Leach, 
C.  C.  861. 

An  indictment  for  the  larceny  of  property  belonging  to  trustees  who  are  not  incor- 
porated, must  lay  the  property  to  be  in  them  as  individuals,  subjoining  a  description  of 
tile  character  in  which  they  are  authorized  to  act.    Rex  v.  Shenington,  1  Leach,  C,  C.  513. 

Indictment. — Though  to  make  the  thing  the  subject  of  an  indictment  for  a  larceny, 
it  must  be  of  some  value,  and  stated  to  be  so  in  the  indictment,  yet  it  need  not  be  of  the 
value  of  some  coin  known  to  the  law,  that  is  to  say  a  farthing  at  the  least.  Reg.  v.  Mor- 
ris, 9  Car.  Sf  P.  349  ;  see  ante  the  commencement  of  this  note. 

An  indictment  for  stealing  a  bank  note  did  not  conclude,  contra  forviam.  statuti — Held, 
by  the  fifteen  judges,  that  it  was  bad.  Rev  v.  Pearson,  5  Car,  Sf  P.  121 ;  S.  P.  Ratcliffe's 
case,  1  M.  C.  C.  R.  313 ;  2  Lewin,  C.  C.  57. 

In  order  to  warrant  a  sentence  of  transportation  for  life  on  an  indictment  for  a  larceny, 
after  a  previous  conviction  for  felony,  the  indictment  need  not  conclude,  contra  jo rmam 
slatiili.    Reg.  v.  Blea,  8  Car.  Sf  P.  735.  ,      ; 

Where,  on  the  trial  of  a  man  and  woman  for  larceny,  it  appears  by  the  evidence  that 
they  addressed  each  other  as  husband  and  wife,  and  passed  and  appeared  as  such,  and 
were  so  spoken  of  by  the  witnesses  for  the  prosecution,  it  will  be  for  the  jury  to  say 
whether  they  are  satisfied  that  they  are  in  fact  husband  and  wife,  even  though  the 
woman  pleaded  to  tlie  indictment  which  described  lier  as  "  a  single  woman."  Reg.  v. 
Woodw'ird,  8  Car.  Sf  P.  561. 

In  such  a  case,  a  female  prisoner  ought  not  to  be  indicted  as  a  single  woman.    lb. 

In  an  indictment  against  a  servant  of  the  "West  India  Dock  Company"  for  stealing  a 
quantity  of  canvass  and  hcssen  belonging  to  the  company  from  their  warehouses,  it 


510"»  HISTORIA  PLACITORUM  CORONA. 

owner  as  a  chattel,  and  so  it  was  agreed  by  the  court  of  king's  bench  , 
9  Car.  1.  upon  an  indictment  for  stealing  the  lead  of  fVesiminster- 
Abbey.  Dalt.  cap.  103.;;.  166. (/j) 

(p)  New  Edit.  cap.  15G.p.  501. 

Was  held  sufficient  to  state.the  property  to  be  "the  goods  and  chattels  of  the  West  India 
Company,"  and  not  necessary,  notwithstanding  the  words  of  the  1^2  Will.  4  c.  11.  s. 
13'.i,  to  allege  in  addition  that  it  was  feloniously  taken  from  the  said  company.  Reg.  v. 
Stokes,  8  Car.  Sf  P.  151.  _  '  '         _ 

An  indictment  on  2  Geo.  2.  c.  25.  alleged  the  stealing  of  a  bill  of  exchange  in  L.  where- 
on the  names  of  vl.  and  B.  were  endorsed,  which  was  the  case  when  the  bill  was  stolen 
at  M.,  and  it  appeared  that  the  bill  had  an  additional  name  as  an  indorsee  when  negoti- 
ated al  L.:  Held,  no  variance.     Rex  v.  Austin,  2  East,  P.  C.  602. 

An  indictment  for  larceny  of  a  promissory  note,  may  describe  it  generally,  as  "  one 
.promissory  note  for  the  payment  of  one  guinea,"  without  setting  the  note  forth.  Rex  v. 
Milnes,  2  East,  P.C.  G02. 

In  an  indictment  for  larceny,  if  the  thing  stolen  be  described  as  a  bank  post-bill,  be 
not  set  out,  the  court  cannot  take  judicial  notice  that  it  is  a  promissory  note,  or  that 
it  is  such  an  instrument  as  under  stat.  2  Geo.  II.  c.  25,  may  be  the  subject  of  larceny, 
although  it  be  described  as  made  for  the  payment  of  money.  Rex  v.  Chard,  R.  Sf  R. 
C.  C.  488. 

Where  an  indictment  described  a  bank  note  as  signed  by  A.  H.  for  the  Governor  and 
Company  of  the  Bank  of  England,  and  a  prisoner  was  convicted:  such  conviction  was 
held  bad,  there  being  no  evidence  of  A.  H.^s  signature.  Rex  v.  Craven,  R.  ^  R.  C.  C.  14. 
2  East,  P.  C.  601. 

Describing  a  bank  note  "  as  a  certain  note,  commonly  called  a  bank  note,"  was  not 
such  a  description  as  will  warrant  a  conviction  on  2  Geo.  II.  c.  25.  for  stealing  it.  lb.  See 
as  to  stealing  bank  notes,  Spangler  v.  Com.  cited  infra.  Com.  v.  Messenger,  1  Binn. 
R.  273.  Com.  v.  McDowell,  1  Browne's,  R.  360.  Stewart  v.  The  Com.  4  S^  S^  R.  194.  2  Ruis. 
on  C.  1.  Note  to  American  Ed.  1845.  - 

An  indictment  for  steaHng  £10,  in  monies  numbered,  is  not  sufficient,  some  of  the 
pieces  of  which  that  money  consisted,  should  be  specified.  Rex  v.  Fry,  R.  Sf  R.  C.  C.  482. 
2  Russ.  C.  Sf  M.  iHd. 

In  an  indictment  on  stat.  2  Geo.  II.  c.  25.  it  was  improper  to  lay  bank  notes  as  chat- 
tels, but  that  word  might  have  been  rejected  as  surplusage,  if  the  indictment  be  in  other 
respects  sufficient.  Rex  v.  Sadi,  2  East,  P.  C.  601. 

A  set  of  new  handkerchiefs  in  a  piece,  may  be  described  as  so  many  handkerchiefs, 
though  they  are  not  separated  one  from  another,  if  the  pattern  designates  each,  and  they 
are  described  in  the  trade  as  so  many  handkerchiefs.  Rex  \.  Niles,  1  R.  Sf  M.  C.  C,  R. 
25.  2  Russ.  C.  ^  M.  169.  ~ 

Where  an  indictment  for  stealing  in  a  dwelling-house,  alleged  it  to  be  the  dwelling- 
house  of  Saiah  Lunns,  a.nd  it  appeared  in  evidence  that  her  name  was  Sarah  London: 
Held,  that  the  varistnce  was  fatal  to  the  capital  part  of  the  indictment.  Rex  v.  Woodward^ 

1  Leach,  C.  C.  253.  n.  See  The  Slate  v.  France,  1  Overton,  ( Tenn.)  Rep.  434. 

In  cases  of  larceny  of  animals, /cr<E  natura,  the  indictment  must  show  that  they  were 
either  dead,  tame,  or  confined,  otiierwise  they  must  be  presumed  to  be  in  their  original 
state.  Rex  v.  Rough,  2  East,  P.  C.  607.  And  see  Rex  v.  Hudson,  2  East,  P.  C.  611. 
And  it  was  not  sufficient  to  add  "  of  the  goods  and  chattels,"  of  such  a  one.  Rex  v.  Rough, 

2  East,  P.  C.  607.  And  see  Rex  v.  Hudson,  2  East,  P.  C.  611. 

An  indictment  for  stealing  a  dead  animal  should  state  that  it  was  dead ;  for  upon  a 
general  statement  that  a  party  stole  the  animal,  it  is  to  be  intended  that  he  stole  it  alive. 
Rex  v.  Edwards,  R.  Sf  R.  C.  C.  497.^  2  Russ.  C.  S^  M.  171. 

Upon  an  indictment  for  stealing  a  live  animal,  evidence  cannot  be  giv*n  of  stealing  a 
dead  one.  lb.  But  in  the  case  of  Rex  v.  Puckering,  1  M.  C.  C.  R.  242,  A.  was  in- 
dicted for  receiving  a  "  lamb;"  when  he  received  the  lamb  it  was  dead,  and  it  was  held 
by  the  fifteen  judges  that  the  indictment  was  sufficient,  it  being  immaterial  as  to  the 
prisoner's  oiTence,  whetlier  the  lamb  was  alive  or  dead,  his  off"ence,  and  the  punishment 
for  it,  being  in  both  cases  the  same,  this  case  appears  to  overrule  the  case  o^  Rex  v.  Ed- 
wards,  supra. 

An  indictment  for  stealing  some  live  tame  turkeys  was  laid  in  the  county  of  H.  it  ap- 


HISTORIA  PLACITORUM  CORON.^.  510" 

3.  Neither  of  com  standing  upon  the  ground,  for  tho  it  be  a  chat- 
tel personal,  and  goes  to  the  executor,  yet  it  savours  of  the  realty, 
while  it  stands  so.     Co.  P.  C.p.  109. 

4.  Larciny  cannot  be  committed  of  such  things,  whereof  no  man 

peared  that  the  prisoner  stole  them  alive  in  tlie  county  of  C.  and  killed  them  there,  and 
brought  them  into  the  county  of//.  Held,  that  as  the  prisoner  had  not  the  turkeys  in  a 
live  state,  in  the  county  of//,  the  charge  as  laid  was  not  proved,  and  that  tlie  word  "  live" 
in  the  description,  could  not  be  rejected  as  surplusage,  and  therefore,  that  the  indictment 
was  bad.  Rex  v.  Halloway,  1  Car.  Sf  P.  128. 

If  a  parish  be  partly  situate  in  the  county  of  W.  and  partly  in  the  county  of  5*.  it  is 
not  sufficient  in  an  indictment  for  larceny,  to  state  the  offence  to  have  been  committed  at 
the  parish  of  //.  in  the  county  of  W.  Rex  v.  Perkins,  4  Car.  Sf  P.  363. 

Evidence  and  Trial. — Where  a  person  went  into  a  shop  for  the  purpose  of  purchasing 
a  ruby  pin,  and  after  selecting  one,  which  was  put  into  a  box,  while  the  young  man  who 
was  serving  him  was  absent  for  about  a  minute,  took  it  out  of  the  box,  and  put  it  in  his 
stock,  and  afterwards  went  into  the  shawl  department  of  the  shop  to  purchase  other  arti- 
cles, saying  that  he  would  return  and  pay  fbr  both  together,  but  was  allowed  to  go  away 
without  inquiry  being  made  as  to  whether  he  had  paid  in  the  shawl  department,  and  a 
bill,  including  the  price  of  the  pin,  was  sent  the  next  day  to  the  house  where  he  was 
residing :  Held,  on  the  trial  of  the  prisoner  for  stealing  the  pin,  that  under  these  circum- 
stances, it  was  for  the  jury  to  say  whetlier  there  was  any  intention  to  steal  the  pin,  and 
whether  there  was  or  was  not  credit  given  for  it;  and  also,  that  the  prosecutors  ought  to 
have  called  the  person  who  served  in  the  shawl  department;  and  their  not  doing  so 
was  a  circumstance  which  would  justify  the  jury  in  looking  with  some  suspicion  at 
the  case,     Reg.  v.  Box,  9  Car.  S^  P.  126. 

A.  went  to  the  shop  of  B ,  and  asked  for  shawls  for  Mrs.  D.  to  look  at;  B.  gave  her 
five;  she  pawned  two,  and  three  were  found  at  her  lodgings;  Mrs.  D.  was  not  called  as 
a  witness :  Held,  that  A.  on  this  evidence  could  not  be  convicted  of  a  larceny  in  stealing 
the  goods  of  B.     Rex  v.  Savage,  5  Car.  Sf  P.  143. 

A  prisoner  was  indicted  for  stealing  three  articles.  It  appeared,  that  having  taken 
the  first  article,  he  returned  in  about  two  minutes,  and  took  the  second,  and  then 
returned  in  half  an  hour  and  took  the  third  :  Held,  that  the  last  taking  was  a  distinct 
felony,  and  could  not  be  given  in  evidence  with  the  other  two;  but  that  the  interval  of 
time  between  the  first  and  second  taking  was  so  short  that  they  must  be  considered  as 
parts  of  the  same  transaction.     Rex  v.  Birdseye,  4  Car.  ^  P.  386. 

■  If  the  only  evidence  against  a  prisoner  indicted  for  larceny  be,  that  the  goods  were 
found  in   his   possession,  sixteen   months   after   they   had   been  stolen,   the   judge    will 

direct  an  acquittal  without  calling  on  him  for  his  defence.     Rex  v. ,  2  Car.  Se 

P.  459. 

Where  property,  recently  stolen,  is  found  in  possession  of  a  party  under  circum- 
stances which  show  it  the  more  probable  that  he  was  made  the  instrument  of  others,  for 
tfie   purpose  of  disposing  of  it,  than  the  party  who  actually  took  it,  the  presumption  of 
guilt  of  larceny,  arising  from  the  recent  possession,  does  not  rise  against  him.     Retr.  v 
Collier,  4  Jur.  703. 

Stolen  property  usually  passes  through  many  hands.  If,  therefore,  the  interval  of 
time  of  the  loss  and  the  finding  be  considerable,  the  presumption  against  the  party 
having  possession  is  much  weakened.     CocJiins''s  case,  2  Leivin,  C.  C.  235. 

The  defence  to  a  charge  of  stealing,  that  the  prisoner  pledged  the  property,  intending 
to  redeem  and  then  restore  it,  is  a  defence  not  to  be  generally  encouraged,  thouo-h  if 
clearly  made  out  in  proof,  it  may  be  allowed  to  prevail.  The  rule  for  the  jury's 
guidance  in  such  a  case  seems  to  be,  that  if  it  clearly  appear  that  the  prisoner  only 
intended  to  raise  money  upon  the  property  fbr  a  temporary  purpose,  and  at  the  time  of 
pledging  the  article  had  a  reasonable  and  fair  expectation  of  being  enabled  shortly,  by 
the  receipt  of  money,  to  take  it  out  and  restore  it,  he  might  be  acquitted ;  but  otherwise 
not.     Reg.  V.  Phetheon,  9  Car.  Sf  P.  553, 

A  prisoner  was  indicted  for  stealing  carpenter's  tools,  and  the  only  evidence  against 
him  was,  that  the  stolen  property  was  in  his  possession  three  months  after  it  was 
lost:    Held,  that  this  was  not  such  a  recent  possession  as  to  put  the  prisoner  upon 

VOL.  I. — 45 


510^  HISTORIA  PLACITORUM  CORONA. 

hath  any  determinate  property,  tho  the  things  themselves  are  capable 
of  property,  as  of  treasure  trove,  or  wreck  till  seized,  tho  he,  that 
hath  them  in  point  of  franchise,  may  have  a  special  action  against 
him,  that  takes  them. 

5.  Larciny  cannot  be  committed  of  things,  that  are  ferx  naturx^ 
unreclaimed,  and  nulHus  in  bonis,  as  of  deer  or  conies,  tho 
[  511  3  in  a  park  or  warren,  fish  in  a  river  or  pond,  wild-fowl,  wild 
swans,  pheasants. 

Eiit  if  any  of  these  are  kild,  larciny  may  be  committed  of  their  flesh 
or  skins,  because  now  they  are  under  propriety. 

Of  domestic  cattle,  as  sheep,  oxen,  horses,  (^r.  or  of  domestic  fowls, 
as  hens,  ditcks,  geese,  ^-c.  and  of  their  eggs,  larciny  may  be  commit- 
ted, for  they  are  under  propriety,  and  serve  for  food. 

Of  those  beasts  or  birds,  that  are  ferse  naturd,  but  reclaimed  and 
made  tame  or  domestic,  and  serve  for  food,  larciny  may  be  committed, 
as  deer,  conies,  pheasants,  partridges,  but  then  it  must  be,  when  he, 
that  steals  them,  knows  them  to  be  tame,  and  so  of  reclaimed  hawks, 
and  likewise  of  the  young  of  such  larciny  may  be  committed,  but  of 
the  young  of  those  beasts  or  birds,  that  are  ferse  naturd,  tho  in  a 
park,  and  tho  the  owner  hath  a  kind  of  property  ratione  loci,privi- 
legii  (§•  impotentix,  yet  larciny  cannot  be  committed  of  them,  as  of 
young  fawns  in  a  park,  young  conies  in  a  warren:  of  young  pigeons 
in  a  dove-coat,  fish  in  a  trunk  or  net,  larciny  may  be  committed. [11] 

stating  how  he  came  by  it,  and  an  acquittal  was  directed.  Rex  v.  Adams,  3  Car.  Sf 
F.  6U0. 

Non-delivery  upon  request    is  evidence  of  a   tortious  conversion.     i?ex  v.  Semple, 

1  Leach,  C.  C.  424,  2  East,  P.  C.  691. 

On  an  indictment  for  larceny  the  wife  of  a  receiver  who  is  not  indicted,  can- 
not be  compelled  to  give  her  evidence  against  the  prisoner.  Rex  v.  Ast,  Car. 
C.  L.  66. 

If  it  is  probable  that  all  the  goods  stolen  were  not  stolen  at  one  time,  but  it  is  still 
possible  that  they  might  have  been  so,  the  judge  will  not  put  the  prosecutor  to  elect  to 
go  upon  the  stealing  of  some  particular  article  or  articles.  Rex  v.  Dunn,  Car. 
C.L.  82. 

Larceny  must  be  tried  in  tiie  county  wliere  committed,  but  the  offence  is  considered 
as  committed  in  every  county  into  which  the  thief  carries  the  goods.  Rex  v.  Thomp- 
son, 2  Russ.  C.  S(  M.  174. 

Therefore  if  a  man  steal  goods  in  the  county  of  A.  and  carry  them  into  the  county  of  B. 
he  may  be  indicted  for  the  larceny  in  the  latter  county.  lb. 

But  if  a  compound  larceny  be  committed  in  one  county,  and  the  offender  carry  the 
property  in  anotlier,  althougli  he  may  be  convicted  in  tlie  latter  county  of  the  simple  lar- 
ceny, he  cannot  be  there  convicted  of  the  compound  larceny.  lb. 

Wliere  four  stole  goods  in  the  county  of  G.  and  divided  them  in  that  county,  and  then 
carried  their  sliares  into  the  county  of  W.  in  their  separate  bags :  Held,  that  it  was  not 
a  joint  larceny  in  W.  but  separate  larcenies  in  that  county,  and  the  subject  of  different 
prosecutions.  Rex  v.  Baniet.l,  2  Russ.  C.  Sf  M.  175.  And  see  Rex  v.  County,  2  Russ.  C. 
£f  M.  127-175. 

On  an  indictment  for  tlie  larceny  of  a  bill  of  excliange,  obtained  from  the  prosecutor 
under  a  pretence  of  discounting  it,  parol  evidence  of  the  bill  may  be  g  ven  after  proof  of 
a  subpwna  duces  tecum,  given  to  the  person  in  whose  possession  it  was  shovvn  to  be, 
shortly  previous  to  the  trial,  but  who  did  not  attend.    Rex  v.  Aickles,  1  Leach,  C.  C  2^4. 

2  East,  P.  C.  675, 

[11]  If  pigeons  are  so  far  tame  that  they  come  home  every  night  to  roost  in  wooden 
boxes,  hung  on  the  outside  of  the  house  of  their  owner,  and  a  party  come  in  the  night 
and  steal  them  out  of  these  boxes,  this  is  a  larceny.    Rex  v.  Brooks,  4  Car.  Sf  P.  131. 


HISTORIA  PLACITORUM  CORONA.  511 

Of  yonng  hawks  in  the  nest  larciny  may  be  committed,  but  not  of 
hawks  eggs,  but  the  takers  are  punisliable  by  fine  and  imprisonment 
upon  the  statute  of  11  H.  7.  cap.  17.  and  31  ^.8.  cap.  12.(r) 

Of  wild  swans,  nor  of  their  young,  larciny  cannot  be  committed, 
but  if  they  be  made  tame  and  domestic,  or  if  they  be  marked  and 
pinioned,  it  is  felony  to  take  them  or  their  young. 

But  it  seems,  that  if  they  be  marked,  and  yet  flying  swans,  that 
range  abroad  out  of  the  precincts  or  royalty  of  the  owner,  it  is  not 
felony  to  kill  and  take  them,  because  they  cannot  be  known  to  belong 
to  any:  these  several  instances  and  differences  may  be  collected  from 
Co.  P.  C.p.  109,  110.  Dalt.  cap.  103. (.s)  and  7  Co.  Rep.  15.  b.  Case 
de  Swans  (§'  libros  ibi. 

6.  Larciny  cannot  be  committed  in  some  things,  whereof, 
the  owner  may  have  a  lawful  property,  and  such  whereupon  [  512  1 
he  may  maintain  an  action  of  trespass,  in  respect  of  the  base- 
ness of  their  nature,  as  mastiffs,  spaniels,  gray-liounds,  blood-hounds, 
or  of  some  things  wild  by  nature,  yet  reclaimed  by  art  or  industry, 
as  bears,  foxes,  ferrets,  4*c.  or  their  whelps,  or  calves,  because,  tho 
reclaimed,  they  serve  not  for  food  but  pleasure,  and  so  differ  from 
pheasants,  swans,  ^"c.  made  tame,  which,  tho  wild  by  nature,  serve 
for  food. 

Only  of  the  reclaimed  hawk,  in  respect  of  the  nobleness  of  its  na- 
ture and  use  for  princes  and  great  men,  larciny  may  be  committed, 
if  the  party  know  it  be  reclaimed. 

V,  What  shall  be  said  the  personal  goods  of  any  person,  or  of  an- 
other person. [12] 

Every  indictment  of  larciny  ought  to  suppose  the  goods  stolen  to 
be  the  goods  of  somebody. 

An  indictment  of  larciny  of  the  goods  ciijusdam  ignoti  is  good,  for 
it  is  at  the  king's  suit,  and  tho  the  owner  be  not  known,  the  felony 
must  be  punished.  21  H.  6.  Enditement  12. 

And  yet  10  H.  6.  Enditement  9.  an  'md'xctmQUi  quod  A..verbe7'avit 
B.  and  20  jacks  ,/^re/i7  20s.feionice  cepil,he\d  good  without  showing 
whose  they  were. 

But  an  indictment  of  ..^.  that  he  is  communis  latro  without  show- 
ing in  particular  what  he  stole,  is  not  good.   22  Jissiz.  73. 

An  indictment,  that  bona  domus  Sj-  ecclesise  tempore  vacationis, 

(>■)  By  this  statute  it  is  made  felony  to  take  hawks  eggs  out  of  any  nests  within  tlie 
king's  lands,  but  this  is  repealed  by  the  general  words  of  1  Mar.  cap,  1. 
(s)  New  Edit.  cap.  156.  p.  499. 


Ferrets,  though  tame  and  saleable,  cannot  be  the  subject  of  larceny.  Rex  v.  Searing,  R. 
4f  R.  C.  C.  351,  2  Russ.  C.  Sf.  M.  153,  and  note  20,  post,  p  516.  See^indlay  v.  Bear, 
8S.SfR.51l.  Norton  v.  Lodd,  5  N.  H.  Rep.  203.  Cum.  v.  Chase,  9  Fich,  R.  15.  Wallis 
T.  Mease,  3  Binn.  R.  546.  Tibbs  v.  Smith,  T.  Raym,  33.  Brock's  case  4  Car.  &■  Fay.  131. 
Ward  V.  TJie  People,  3  Hill,  395. 

[12]  See  2  East's  P.  C.  587.  2  Russ.  on  Crimes,  136.  1th  ed.  3  Bac.  Ab.  Felony. 
4  Bl.  Com.  232.  Hodges  Cases,  2  East's  P.  C.  590.  n.  1  Leach,  201.  Lee  v.  Ridsun, 
7  Taunt.  R.  191. 


512  HISTORIA  PLACITORUM  CORONA. 

or  bona  capellse  in  ciistodia  J.  S,  felonicl  cepit,  is  good,  7  E.  4.  14. 
b.  Co.  P.  C.p.  110.  Stamf.  P.  C.p.  25.  b.  8^  95.  b. 

If  a  man  steal  bells,  or  other  goods  belonging  to  a  church,  he  may 
be  indicted,  quod  felonice,  Sj-c.  cepit  bona  parochianorum  de  B.  M.  31 
Sf  32  Eliz.  B.  R.  Hadman  and  Green  versus  Ringwood,{t)  and  yet 
an  action  of  trespass  lies  for  the  churchwardens  in  such  case,  qusere 
bona  S}-  catalla  parochianorum  in  custodid  sua,  or  iji  custodid  A.  B. 
prxdecessorum  suorum  gardianoruni  ecclesiss  cepit  <§'  asportavit  ad 
daynnum  parochianorum.  T.  36  Eliz.  B.  R.  Alet hod  and  Barfoot. 
Dyer  99. 

\i  Jl.  have  a  special  property  in  goods,  as  by  pledge,  or  a  lease  for 
years,  and  the  goods  be  stolen,  they  must  be  supposed  in  the  indict- 
ment the  goods  oi  A. 

If  Jl.  bail  goods  to  B.  to  keep  for  him,  or  to  carry  for  him, 
(^513  ]  and  B.  be  robbed  of  them,  the  felon  may  be  indicted  for  lar- 
ciny  of  the  goods  of  A.  or  B.  and  it  is  good  either  way,  for 
the  property  is  still  in  A.  yet  B.  hath  the  possession,  and  is  charge- 
able to  A.  if  the  goods  be  stolen,  and  hath  the  property  against  all  the 
world  but  A. 

A.  is  indicted,  that  he  stole  the  goods  of  B.  and  it  appears  in  the 
indictment,  that  B.  was  a  feme  covert  at  the  time,  the  indictment  is 
i;aught,  for  they  are  the  goods  of  her  husband,  and  so  if  A.  be  in- 
dicted for  stealing  the  goods  of  B.  and  upon  the  evidence  it  appears, 
that  B.  had  neither  interest  nor  possession  in  the  goods,  or  was  a 
feme  covert,  the  party  ought  to  be  acquitted,  but  then  he  may  be 
presently  indicted  de  novo  for  stealing  the  goods  of  the  husband  or 
true  proprietor ;  and  so  it  once  happened  before  me  at  Aylesbury 
1667.  in  the  case  oi  Ernes,  who  was  convicted  and  executed  upon  a 
second  indictment. 

Regularly  a  man  cannot  commit  felony  of  the  goods,  wherein  he 
hath  a  property.  [13] 

If  A.  and  B.  be  joint-tenants  or  tenants  in  common  of  an  horse, 

it)  Cro.  Eliz.  145,  179. 


[13]  To  whatever  extent,  and  for  whatever  purpose,  any  one  has  a  property  in  or  right 
to  a  thing  stolen,  to  such  extent,  and  in  respect  to  such  purpose,  it  is  stolen  from  him, 
and  a  tlieft  is  from  all  the  proprietors  except  in  the  case  of  theft  by  one  of  the  owners,  in 
which  case  it  can  be  a  tlieft  only  from  the  others.  Cowinnr  v.  Snow,  11  Mass.  R.  415. 
Where  an  owner,  whether  his  property  be  absolute  or  modified,  partial  or  of  the  entire 
thing,  fraudulently  for  his  own  benefit  takes  it  from  another  in  whose  hands  it  is,  with 
intent  to  subject  him  to  the  loss,  and  despoil  him  of  the  value  of  the  thing,  the  act  is,  in 
its  essential  character,  a  theft ;  and  so  it  has  been  held  in  direct  cases  at  the  common 
law;  and  it  is  now  established  beyond  question,  that  an  absolute  owner  may  steal  from 
another  what  belongs  to  himself.  See  ante,  page  504,  note  2,  and  authorities  there 
cited.  Report  of  the  Penal  Code  of  Mass.  p.  11.  Palmer  v.  The  People,  10  Wend.  R. 
1G5.  By  the  Slat.  7  4"  8  Geo.  IV.  FeeVs  Act,  c.  29,  s.  45,  the  stealing  of  a  chattel  or  a 
fixture  by  the  lessee  is  made  larceny.  The  tenant  in  this  case  has  the  exclusive  riglit  of 
actual  possession  under  his  contract;  that  is,  one  who  is  possessory  owner  may  commit 
larceny  of  the  thing  of  which  he  is  such  owner  in  respect  to  the  proprietary  owner. 
The  indictment  is  as  in  any  other  case  of  simple  larceny.  1  Archb.  Peel's  Acts,  406; 
The  People  v.  Wiley,  3  HiWs  N.  Y.  R.  199. 


HISTORIA  PLACITORUM  CORONA.  513 

and  f^.  takes  the  horse, possibly  animo  furandi,YQX  this  is  not  felony, 
because  one  tenant  in  common  taking  the  whole  doth  but  what  by 
law  he  may  do. [14] 

Yet  if  ./?.  take  away  the  trees  of  B.  and  cut  them  into  boards,  B. 
may  take  them  away,  and  it  cannot  be  felony;  so  if  t^.  take  the 
cloth  of  B.  and  make  it  into  a  doublet,  B.  may  take  it,  and  it  cannot 
be  felony.    M.  2  Eliz.  Mof-e  n.  61.  p.  19. 

It\y2.  take  the  hay  or  corn  of  B.  and  mingles  it  with  his  own  heap 
or  cock,  or  if  ./^.  take  the  cloth  of  B.  and  embroider  it  with  silk  or 
gold,  B.  may  retake  the  whole  heap  of  corn,  or  cock  of  hay,  or  gar- 
ment and  embroidery  also,  and  it  is  no  felony,  nor  so  much  as  a  tres- 
pass.   H.  36  B/iz.  B.  R.  Popham  n.  2  p.  38. 

Yet  if  t/?.  bail  goods  to  B.  and  afterwards  animo  furandi  steals 
the  goods  from  B.  with  design  probably  to  charge  him  for  them  in 
an  action  of  detinue,  this  is  felony;  quod  vide  7  H.  6.43.  a.  Co.  B.C. 
p.  110.    Stamf.  P.  a.  p.  26.  a. 

Tlie  wife  cannot  commit  felony  of  the  goods  of  her  husband,  for 
they  are  one  person  in  law,  21  H.%.  Corone455.  Co.  P.  C. 
p.  110.  and  therefore,  if  she  take  or  steal  the  goods  of  her  f  514  ~\ 
husband,  and  deliver  them  to  B.  who  knowing  it,  carries 
them  away,  this  seems  no  felony  in  B.  for  it  is  taken,  quasi  by  the 
consent  of  her  husband, (w)  yet  trespass  lies  against  B.  for  such 
taking,  for  it  is  a  trespass,  but  in  favorum  vitae  it  shall  not  be  ad- 
judged a'  felony,  and  so  I  take  the  law  to  be,  notwithstanding  tlie 
various  opinions.   Dalt.  cap.  104.  p.  268,  269.  ex  lectura  Cooke.{x) 

But  if  the  husband  deliver  goods  to  B.  and  the  wife  had  taken 
them  feloniously  from  B.  this  had  been  felony  in  the  wife,  Dalt. 
cap.  104.  p.  268.  for  if  the  husband  himself  had  taken  them  felo- 
niously from  B.  it  had  been  felony,  as  hath  been  said;  but  then  it 
must  in  both  cases  be  a  taking  animo  furandi. 

But  if  a  man  take  away  another  man's  wife  against  her  will  citm 
bonis  viri,  that  is  felony  by  the  statute  of  Westm.  2.  cap.  34.  which 
saith,  Haheat  rex  sectam  de  bonis  sic  asportatis,{y)  13  Assiz.  6. 
But  if  it  be  by  the  consent  of  the  wife,  tho  against  the  consent  of  the 
husband,  it  seems  to  be  no  felony,  but  a  trespass,  for  it  cannot  be  a 
felony  in  the  man,  unless  it  be  a  felony  in  the  woman,  who  consented 
to  it,  13  JJssiz.  6.  but  Ballon  thinks  it  felony,  ■^^i^■  supra. 

Yet  in  some  cases  the  principal  agent  mayl3e  excused  from  felony, 
and  yet  he,  that  is  principal  in  the  second  degree,  may  be  guilty,  as 
if  a  man  put  a  child  of  seven  years  to  take  goods,  and  bring  them  to 
him,  and  he  carry  them  away,  the  child  is  not  guilty  by  reason  of 
his  infancy,  yet  it  is  felony  in  the  other. 

(«)  But  in  case  B.  were  her  adulterer,  Mr.  Ballon  thinks  it  would  be  felony,  for  in 
such  a  case  no  consent  of  the  husband  can  be  presumed.     Dalton  uhi  infra. 
(x)  New  Edit.  cap.  157.  p.  504.  (y)  2  Co.  Inslit.  434. 

[14]  See  2  East's,  P.  C.  557;  Rose,  on  Crim.  Ev.  514;  Bramley'a  case,  Russ,  & 
Ry.  478;   The-  teople  v.  Gay,  1  HilVs  R.  364. 


514  HISTORIA  PLACITORUM  CORONA. 

If  Jl.  die  intestate,  and  the  goods  of  the  deceased  are  stolen  before 
administration  conjmitted,  it  is  felony, [15]  and  the  goods  shall  be 
supposed  to  be  bona  episcopi  de  D.  ordinary  of  the  diocese,  and  if 
he  made  B.  his  executor,  the  goods  shall  be  supposed  bona  B.  tho 
he  halh  not  proved  the  will,  and  they  need  not  sliew  specially  their 
title  as  ordinary  or  executor,  because  it  is  of  their  own  pos- 
[5153  session,  ui  which  case  a  general  indictment,  as  well  as  a 
general  action  of  trespass  lies  without  naming  themselves 
executor  or  ordinary,  and  so  for  an  administrator. 

But  if  servants  in  the  house  imbezzle  their  master's  goods  after  his 
decease,  this  seems  not  to  be  felony  at  common  law,  but  only  tres- 
pass, because  the  goods  were  quodammoclo  in  their  custody ;  and 
therefore  remedy  is  provided  by  the  statute  of  33  H.  6.  cup.  l.[16] 


[15]  See  Davis's  case,  2  S.  C.  Law  Rep.  291;  Smith's  case,  7  Carr  Sf  Pay,  147; 
ScoWs  ca.se,  Russ.  Sc  Ry.  13;  Gaby's  case.  Id.  178;  Wonson  v.  Sayward,  13  Rick. 
R.  402. 

[IG]  The  statute  of  33  Hen.  VI.  c.  1.  provides  against  larceny  by  household  servants 
of  the  goods  of  their  master  after  the  decease  of  the  master.  Tlie  Slat.  21  Hen.  Vlll.  c.  7. 
provides  that  it  shall  be  felony  in  a  servant  "  to  whom  any  caskets,  jewels,  money,  goods 
or  chattels  shall  be  delivered  to  keep,  to  withdraw  iiimself  and  go  away  with  said  caskets, 
^c,  with  intent  to  steal  tlie  same  and  delraud  his  master  thereof,  contrary  to  the  trust 
so  put  in  him;"  and  also  makes  it  felony  in  a  servant  who,  "  being  in  the  service  of  his 
master  without  the  aSsent  of  his  master,  embezzles  the  said  caskets,  »Slc.,  and  converts 
the  same  to  his  own  use  with  purpose  to  steal  it;"  reciting  at  the  same  time  that  it  was 
doubtful  whether  this  was  felony  at  tlie  common  law.  Mr.  Russell,  vol,  ^.p.  1217.  Am,  Ed, 
1824,  remarks  that,  "  this  statute  is  little  resorted  to  at  the  present  day.  The  clear  maxim 
of  the  common  law  is,  that  where  a  party  has  only  the  bare  custody  of  the  goods  of 
another,  the  legal  possession  remains  in  the  owner,  and  the  party  may  be  guilty  of  tres- 
pass and  larceny  in  fraudulently  converting  the  same  to  his  own  use.  So  that  it  has 
been  tliought  to  be  more  reasonable  and  consistent  to  consider  this  statute  as  in  the 
nature  of  a  declaratory  act."  See  Paradise's  case,  2  East,  P.  C.  565.  of  a  servant's  taking 
bills  of  exchange;  Robinson's  case,  2  East,  P.  C.  565.  of  a  carter's  taking  a  package  of 
goods  which  his  master  in  whose  general  employment  he  was,  entrusted  to  him  to  carry  ; 
•Shear's  case,  2  Leach,  825  ;  2  East,  P.  C.  568.  of  a  lighterman  who  sold  part  of  a  lighter- 
load  of  oats,  which  he  was  sent  to  fetch  from  on  board  of  the  ship;  Lavender's  case, 
2  Ritss.  1221.  Am.  Ed.  1824.  of  money  given  to  a  servant  to  leave  with  another;  Chip- 
chase's  case,  2  Leach,  699.  S.  C.  2  East,  P.  C  567.  of  a  clerk's  stealing  a  bill  of  exchange 
from  the  desk  of  which  he  had  charge.  See  also  Smith's  case,  2  Riiss.  208;  R.  Sf  R.  267. 
Wilkinson's  case,  2  Russ.  201.   Wait's  case,  2  Russ.  204;  &  C.  2  East,  P.  C.  570;  S.  C. 

1  Leach,  33;  Bazely's  case,  2  East,  P.  C.  571;  S.  C.  2  Leach,  835;  Hammon's  case, 

2  Russ.  202;  S.  C.2  Leach,  1083;  Murray's  case,  2  East,  P.  C.  683;  Jenson's  case, 
Moody,  434;  Clew's  case,  4  Wash.  C.  C.R.  700;  iHe^coZf  s  case,  Moot/y,  433 ;  Bull's  c:ise, 
2  East,  P.  C.  572 ;  S.C.  2  Leach,  841;  Bass's  case,  1  Leach,  251 ;  Carr's  case,  2  Russ. 
208  ;  R.  Sf  R.  98  ;  Leach's  case,  3  Stark,  N.  P.  C.  70  ;  2  Deac.  Abr.  780 ;  Hartley's  case, 
2  Russ.  2U9;  R.  S^  R.  139;  Thome's  case,  2  East,  P.  C.  622;  Squire's  case,  2  Stark,  N. 
P.  349  ;  Hutchinson's  case,  R.  Sf  R.  412;  Eastall's  case,  2  Russ.  197  ;  Commonwealth  v. 
Morse,  14  Mass.  R.  217  ;  People  \.  Norton,  SCowen,  137;  Dillenhack  v.  Jerome,  7  Cowen, 
294 ;  HasseU's  case,  1  Leach,  3  ;  Baker's  case,  1  Dow.  4-  Ry.  N.  P.  C.  19 ;  1  Deac.  Abr. 
778;  Robinson's  case,  2  Russ.  198;  2  East,  P.  C.  565;  Harding's  case,  R.  Sf  R.  125; 
White's  case,  2  Ti/ler,  352;  McNamie's  case.  Rose.  jBr. 481;  Moody, '3&S;  Hughe's  case. 
Moody,  370;  2  Deac.  Abr.  1667;  Abrahat's  case,  2  East,  P.  C.  569;  S.  C.2  LeacA,  968; 
State  Y.  Self,  I  Boy.  242;  Atkinson's  case,  2  Russ.  201;  S.  C.  1  Leach,  302;  n.  (a.) 
Harris's  case,  2  Russ.  C.  &(  M.  209;  Spenser's  case,  Russ.  Sf  Ry.  299;  ^^'illiams's  case, 
7  C.  Sf  P.  338;  Clay's  case,  2  East,  P.  C.  580;  Beachy's  case,  Russ.  Sf  Ry.  319 ;  S.  C. 
2  Russ.  C.  Sf  M.  110;  Williams's  case,  6  Car.  Sf  Pay.  626;  Biscall's  case,  1  Id.  454; 
Wittingham's  case,  2  Leach,  912;  Headge's  case,  Id.  1033;  Freeman's,  case,  5  Carr,  4f 
P.  531 ;  Hayden's  case,  7  Id.  445 ;  Howell's  case,  /J.  325 ;  Prince's  case,  Moorf.  ^  Mai, 


HISTORIA  PLACITORUM  CORONA.  515 

that  if  they  appear  not  upon  proclamation,  they  shall  be  attaint  of 
felony,  but  if  they  appear,  they  shall  answer  for  it  as  a  trespass. 

Rut  an  indictment,  quod  invenit  hominem  mortiium,  (§•  felonict 
furalus  fuit  diiaa  tunicas  without  saying  de  bonis  <§'  cataUis  of  the 
executor  or  ordinary,  is  not  good,  and  therefore  the  party  was  dis- 
charged.    11  i?.  2.  Enditement,  27. 

./?.  digged  up  a  dead  body  out  of  the  grave,  and  stole  his  shroud, 
and  buried  him  again,  tiiis  is  reported  by  Mr.  Dalfon,  cap.  103. 
p.  266.  to  be  no  felony,  but  a  misdemeanor,  for  which  the  party  was 
whipt.  And  accordingly  I  have  seen  it  reported  to  be  held  16  Jac. 
in  Nottingham's  case,(r)  quia  nullius  in  bonis,  but  see  Co.  P.  C. 
p.  110.  in  Maine's  case(a)  ruled  by  the  advice  of  all  the  judges  to  be 
felony,  and  in  the  indictment  the  goods  shall  be  supposed  the  goods 
of  the  executor,  administrator,  or  ordinary. 

But  it  is  held,  that  if  ^.  put  a  winding-sheet  upon  the  dead  body 
of  B.  and  after  his  burial  a  thief  digs  up  the  carcase  and  steals  the 
sheet,  he  niay  be  indicted  for  felony  de  bonis  4'  catallis  J2.  because 
it  transferd  no  property  to  a  dead  man. [17]  12  Co.  Rep.  112. 

VI.  I  come  to  the  sixth  consideration,  who  may  be  said  a  person 
committing  larciny,  but  of  this  I  have  at  large  treated  before  cap.  3, 
S,'c.  and  therefore  shall  say  but  little  here. 

An  infant  under  the  age  of  discretion  regularly  cannot  be  guilty  of 
larciny,  viz.  under  fourteen  years,  unless  it  appears  by  circumstances, 
that  he  hath  a  discretion  more  than  the  law  presumes. 

A  madman,  non  compos,  or  lunatic  in  the  times  of  his 
lunacy  cannot  commit  larciny,  but  ought  to  be  found  not  [  516  ]] 
guilty  upon  due  evidence  thereof. 

A  feme  covert  alone  may  be  guilty  of  larciny,  if  done  without 
coercion  of  her  husband.     27  ^ssiz.  40.[1S] 

But  it  hath  generally  now  obtaind,  tliat  she  cannot  be  guilty  of 
larciny  jointly  with  her  husband,  because  presumed  to  be  done  by 
coercion  of  her  husband.  Vide  Dalt.  cap,  104.(6)  Stamf.  P.  C. 
fol.  26.  a.  Sf  librus  ibi. 

(s)  This  case  is  mentioned  by  Dalton  in  the  place  cited  by  our  author,  which  in  New 
Edit,  is  cap.  156.  p.  502. 

(a)  12  Co.  112.  V  (fc)  New  Edit.  cap.  157.  p.  503. 

21  ;  Mellish's  case,  Russ.  ^  Ry.  80;  Thornley's  case,  Mood.  343;  Hawton's  case,  7  Car, 
6f  Pay.  281;  Snowley's  case,  4  C.  Sf  P.  3:t0 ;  Sullen's  case,  Mood,  129;  Walsh's  case, 
Russ.  Sf  i?y.  215;  S.  C.  4  Taunt.  258.  284;  Hoggen's  case.  Id.  145;  Nettleton's  case. 
Mood,  259  ;  Hobson's  case,  Russ.  ^-  Ry.  56;  Tnytor's  case,  Id.  63;  HaWs  case,  Id.  463; 
Jones's  case,  7  Car.  ^  Pay.  834;   Rep.  of  the  Penal.  Code.  Mass.  22. 

[-17]  As  to  stealing  a  human  body,  see  1  Cri7n.  Law  Com.  Rep.  20.  2  East's  P.  C. 
632.    2  Russ.  on  Crimes,  163.    Rose,  on  dim.  Ev.  517. 

As  to  property  in  grave  clothes,  see  3  Inst.  110.    Haynes'  case,  12  Rep.  113. 

Blackstone  remarks  {vol.  4. ;).  235.)  that  by  the  law  of  the  Franks  a  person  who  dusf  a 
corpse  up  in  order  to  strip  it,  was  to  be  banislied  from  society,  and  no  one  suffered  to 
relieve  his  wants  till  the  relutives  of  the  deceased  consented  to  his  re-admission:  and  he 
cites  Montfsqiiieri,  Sp.  L.  b.  30.  c.  19. 

[18]  See  ante, p.  44,  notes;  and  see  further  WiJford's  case,  Russ.  Sf  Ry.  517.  French's 
case.  Id.  491.  Clarke's  case.  Mood.  R  376,  note.  Willises  case,  id.  375.  Solfries'  case, 
id.  243.  Harrison's  case,  2  East's  P.  C.  559.  Turner's  case,  1  Leach,  C.  C.  536.  The 
People  V.  Schuyler,  6  Cowen,  R;  572.  • 


516  HISTORIA  PLACITORUM  CORONA. 

But  this  I  take  to  be  only  a  presumption  till  the  contrary  appear, 
for  I  have  always  thought,  that  if  upon  the  evidence  it  can  clearly 
appear,  that  the  wife  was  not  drawn  to  it  by  her  husband,  but  that 
she  was  the  principal  actor  and  inciter  of  it,  she  is  guilty  as  well 
as  the  husband,  but  stabilur  prsesumptio,  donee  probetiir  in  contra- 
rmm,  neither  is  the  book  of  2  E.  3.  Curone  160,  to  the  contrary,  but 
in  the  book  of  27  ^ssiz.  40.  where  she  was  indicted  alone,  inquiry 
was  made,  whether  it  were  by  coercion  of  the  husband. 

And  therefore,  if  .^.  and  B.  his  wife  be  indicted  by  these  names  of 
larciny,  the  indictment  is  not  void,  for  the  husband  may  be  con- 
victed, tho  the  wife  be  acquitted  upon  the  presumption  of  her  hus- 
band's coercion. 

Again,  the  husband  may  be  acquitted,  and  the  wife  found  to  have 
done  the  felony  alone,  for  every  indictment  is  several  in  law ;  or 
again,  Xho  prima  facie  the  wife  cannot  be  guilty  of  larciny,  no  nor  of 
burglary,  where  the  husband  is  party  in  the  fact,  (tho  she  may  be 
guilty  of  murder  or  manslaughter  jointly  with  her  husband)  and 
therefore  prima  facie  the  wife  in  such  case  must  be  acquitted,  yet 
for  my  part  I  think  the  circumstances  may  be  such,  that  the  wife 
may  be  as  well  guilty  in  larciny  or  burglary,  as  her  husband. 

If  a  servant  commit  felony  by  the  coercion  of  his  nmster,  yet  it 
doth  not  excuse  the  servant,  tho  it  excuse  the  wife,  as  is  before  said, 
for  the  wife  is  inseperably  sub  potestate  viri,  but  it  is  not  so  with  a 
servant,  for  as  he  is  not  bound  to  obey  his  master's  unlawful  com- 
mands, so  he  may  recover  damages  for  any  wrong  done  him  by  his 
master.    Bali.  cap.  104, p.  269.{c)ll9] 

See  Black.  Com.  Lib.  iv.  cap.  17.  p.  229  to  244.  and  Foster  73, 123, 124, 366.  and  1  Hawk. 

P.  C.  Index  tit.  Larciny. 

(c)  New  Edit.  p.  504. 

[19]  Simple  larceny  must  be  in  the  first  place  an  unlawful  taking,  which  implies  that 
the  goods  must  pass  from  the  possession  of  the  right  owner,  and  without  his  consent, 
and  therefore  where  there  is  no  change  of  possession,  or  a  change  of  it  by  consent,  or  a 
cliange  from  the  possession  of  a  person  witiiout  title  to  that  of  the  right  owner,*  tliere  can 
in  any  of  tliese  cases  be  no  larceny.  And  as  tlie  taking  must  be  without  consent  of  the 
owner,  so  in  general  no  delivery  of  goods  from  the  owner  to  the  offender  upon  trust  can 
ground  a  larceny.  As  if  A.  lends  B.  a  horse,  and  lie  rides  away  with  him.  Yet  if  the 
delivery  be  obtained  from  the  owner  by  a  person  having  animus  furandi  at  the  time,  and 
who  afterwards  unlawfully  appropriates  tlie  goods  in  pursuance  of  that  intent,  it  is  lar- 
ceny; as  if  in  the  case  above  supposed,  B.  solicited  tliC  loan  of  the  horse  with  intent  to 
steal  him.  {Major  Semple^s  case,  2  Leach,  469,  470.)  But  in  such  cases,  bare  non-de- 
livery shall  not  of  course  be  intended  to  arise  from  a  felonious  design;  since  that  may 
happen  from  a  variety  of  other  accidents.  So  a  person  who  has  received  goods  by  delivery 
from  the  owner,  will  nevertheless  be  found  guilty  of  larceny  by  appropriating  them,  if 
they  were  delivered  under  such  circumstances  as  not  to  divest  the  owner  of  the  legal 
possession  ;  as  when  a  servant  embezzles  his  master's  plate,  {Christian''s  Blacksione,  vol. 
iv.  page  230,  note ;)  or  the  guest  at  an  inn  or  tavern  makes  away  with  the  articles  of 
which  he  has  temporary  use.     Hawk,  P.  C.  h.  1.  c.  33.  s.  6;  4  Bl.  Com.  331. 

Again,  there  must  not  only  be  a  taking,  hut  a  carrying  away;  cepit  et  asporiavit  was 
the  old  law  Latin.  A  bare  removal  from  the  place  in  which  he  found  the  goods,  though 
the  thief  does  not  quite  make  off  with  them,  is  a  sufficient  asportation,  or  carrying  away. 

*  But  if  a  person  has  temporary  title  against  the  permanent  owner,  the  latter  may  be 
guilty  of  larceny  in  taking  them.     R.  v.  Wilkinson,  R.  Sf  R.  C.  C.  470;  4  Bl.  Com.  231. 


HISTORIA  PLACITORUM  CORONiE.  516' 

As  if  a  man  be  leading  another's  horse  out  of  a  close  and  be  apprehended  in  the  fact,  or 
if  a  guest  stealing-  goods  out  of  an  inn,  has  removed  them  from  his  chamber  down  stairs, 
these  have  been  adjudged  sufficient  carryings  away  to  constitute  a  larceny.  Qi  Inst.  108, 
109;)  or  if  a  thief  intending  to  steal  plate,  takes  it  out  of  a  chest  in  which  it  was,  and 
lays  it  down  upon  the  floor,  but  is  surprised  before  he  can  make  his  escape  with  it,  this 
is  larceny. 

Farther,  this  taking  and  carrying  away  must  be  of  personal  iroof/s.  Lands,  tenement?, 
hereditaments,  either  corporeal  or  incorporeal,  either  freehold  or  less  than  freehold,  can. 
not  in  their  nature  be  taken  and  carried  away.  And  of  things  likewise  that  adhere  to 
the  freehold,  as  corn,  grass,  trees,  and  the  like,  or  lead  upon  a  house,  no  larceny  could  be 
committed  by  the  rules  of  the  common  law;  but  the  severance  of  them  was  merely  a 
trespass,  which  depended  on  a  subtlety  in  the  legal  notions  of  our  ancestors.  These 
things  were  parcel  of  the  real  estate,  and  therefore,  while  they  continued  so,  could  not  by 
any  possibility  be  the  subject  of  theft,  being  absolutely  fixed  and  immovable;  and  if  they 
were  severed  by  violence,  so  as  to  be  changed  into  movables,  and  at  the  same  time  by 
one  and  the  same  continued  act,  carried  off  by  the  person  who  severed  them,  they  could 
never  be  said  to  be  taken  from  the  proprieior  in  this  their  newly-acquired  state  of  mobi- 
lity, which  is  essential  to  the  nature  of  larceny,  being  never  as  such  in  the  actual  or 
constructive  possession  of  any  one  but  him  who  committed  the  trespass.  He  could  not 
in  strictness  be  said  to  have  taken  what  at  that  time  were  the  personal  goods  of  another, 
since  the  very  act  of  taking  was  what  turned  them  into  personal  goods.  But  if  the  thief 
severs  them  at  one  time,  whereby  the  trespass  is  completed,  and  they  are  converted  into 
personal  cliattels  in  the  constructive  possession  of  him  on  whose  soil  they  are  left  or  laid, 
and  comes  again  at  another  time  when  they  are  so  turned  into  personalty,  and  takes 
them  away,  it  is  larceny  at  th»  common  law ;  and  so  it  is  if  the  owner  or  any  one  else 
has  severed  them.  So,  upon  nearly  the  same  principle,  the  stealing  of  writings  relating 
to  real  estate  is,  at  common  law,  no  felony,  but  a  trespass,  {Rex  v,  Westbeer,  Stra.  1137,) 
because  they  concern  the  land,  or  according  to  our  technical  language,  savour  of  the 
realty,  and  are  considered  as  part  of  it  by  the  law;  so  that  they  descend  to  the  heir 
together  with  the  land  which  they  concern.  Bonds,  bills,  and  notes  which  concern  mere 
thoses  in  action,  wore  also  at  the  common  law,  held  not  to  be  such  goods  whereof  larceny 
might  be  committed,  being  of  no  intrinsic  value,  (8  Rep.  33.  b.)  and  not  importing  any 
property  in  possession  of  the  person  from  whom  they  were  taken.  By  the  common  law, 
also,  larceny  could  not  be  committed  of  treasure  trove,  or  wreck,  till  seized  by  the  king, 
or  him  who  hath  the  franchise,  for  till  such  seizure,  no  one  has  a  determinate  property 
therein;  nor  could  it  be  committed,  at  the  common  law,  of  such  animals  in  which  there 
is  no  property,  either  absolute  or  qualified,  as  of  beasts  that  are  fercE  naturcB,  and  unre- 
claimed, such  as  deer.     Hawk.  P.  C.  b.  1.  c.  33.  s.  25;  ante, p.  11. 

It  is  also  said  {Dalt.  Just.  c.  156,)  that  if  swans  be  lawfully  marked,  it  is  felony  at 
common  law  to  steal  them,  though  at  large  in  a  public  river;  and  that  it  is  likewise  felo- 
ny to  steal  them,  though  unmarked,  if  in  any  private  river  or  pond;  otherwise  it  is  only 
a  trespass.  But  of  all  valuable  domesticated  animals,  as  horses  and  other  beasts  of 
draught,  and  of  ail  animals,  domita  natures,  which  serve  for  food,  as  neat  or  other  cattle, 
swine,  poultry,  and  the  like,  and  of  their  fruit  or  produce  taken  from  them  while  living, 
as  milk  or  wool,  (Dalt.  21 ;  Crompt.  36 ;  Hawk.  P.  C.  b.  1.  c.  33.  s.  28.  The  King  v.  Mar- 
tin,  by  all  the  judges,  P.  17.  Geo.  III.)  larceny  may  be  committed  at  common  law,  and 
also  of  the  flesh  of  such  as  are  either  dornita  or  fer<B  natura,  when  killed;  (ante  p.  511.) 
while  on  the  other  hand,  as  to  those  animals  which  do  not  serve  for  food,  and  which, 
therefore,  the  la*?!?  holds  to  have  no  intrinsic  value,  as  dogs  of  all  sorts,  and  other  creatures 
kept  for  whim  and  pleasure,  though  a  man  may  have  a  bare  property  therein,  and  main- 
tain a  civil  action  for  the  loss  of  them,  {ante  p.  512.)  yet  they  are  not  of  such  estimation 
as  that  the  crime  of  stealing  them  amounts  to  larceny. 

Lastly,  the  taking  and  carrying  awjy,  must  be  with  intevt  to  deprive  the  right  owner, 
or  as  it  is  frequently  expressed,  animo  furandi.  (The  civil  law  expresses  this  by  the 
words  "lucri  causa."  4  Inst.  1.1.)  This  requisite,  besides  excusing  those  who  labor  under 
incapacities  of  mind  or  will,  indemnifies  also  mere  trespassers,  and  other  petty  oflenders. 
As  if  a  servant  takes  his  master's  horse  without  his  knowledge,  and  brings  him  home 
again — if  a  neighbor  takes  another's  plow  that  is  left  in  the  field,  and  uses  it  upon  his 
own  land,  and  then  returns  it — if  under  colour  of  owner  of  rent  where  none  is  due,  I  dis. 
train  another's  cattle  or  seize  them — all  these  are  trespasses,  but  no  felonies,  {ante, 
p.  509.)  The  ordinary  discovery  of  a  felonious  intent  is  where  the  party  doth  it  clan- 
destinely,  or  being  charged  with  the  fact,  denies  it.  But  this  is  by  no  means  the  only 
criterion  of  criminality,  for  in  cases  that  may  amount  to  larceny,  the  variety  of  cireum- 


516^  HISTORIA  PLACITORUM  CORON.^. 

stances  is  so  great,  and  the  complication  thereof  so  mingled,  that  it  is  impossible  to 
recount  all  those  which  may  evidence  a  felonious  intent  or  anvnum  fnrandi ;  wherefore 
they  must  be  left  to  the  due  and  attentive  consideration  of  the  court  and  jury. 

Hiving  tiius  considered  the  general  nature  of  simple  larceny,  at  common  law,  we  now 
arrive  at  its  punishment.  Thelt,  by  the  Jewish  law,  was  only  punished  with  a  pecuniary 
fine  and  satisfaction  to  tiie  party  injured,  (Exod.  xxii.)  And  in  the  civil  law  tdl  some 
very  late  constitutions,  we  never  find  tlie  punishment  capital.  The  laws  of  Draco,  at 
Athens,  punished  it  with  death;  but  his  laws  were  said  to  be  written  in  blood;  and  Solon 
afterwards  ciiangcd  tiie  penalty  to  a  pecuniary  mulct.  And  so  the  Attic  laws,  in  general, 
continued,  {I'etit.  L.  L.  Attic.  I.  7.  tit.  5.)  except  that  once,  in  a  time  of  dearth,  it  was 
made  capital  to  break  into  a  garden  and  steal  figs;  but  this  law,  and  the  informers  grew 
BO  odious,  that  from'them'  all  malicious  informers  were  styled  sycophants,  a  name  which 
we  have  much  perverted  from  its  original  meaning.  In  England,  the  ancient  Saxon  laws 
nominally  punished  theft  with  death,  if  above  the  value  of  twelve  pence;  but  the  criminal 
was  permitted  to  redeem  his  life  by  a. pecuniary  ransom,  as  amongst  their  ancestors  the 
Germans,  by  a  stated  number  of  cattle.  Tac.  de  Mor.  Germ.  c.  12.  But  in  the  niiith 
year  of  Henry  1.  this  power  of  redemption  was  taken  away,  and  all  persons 'guilty  of  lar- 
ceny,  above  the  value  of  twelve  pence,*  were  directed  to  be  hung.  So  that  stealing  to 
above  this  value  (which  was  called  grand  larceny,)  became  a  felony  absolutely  capital, 
and  so  continued  to  our  o.wn  lime,t  while  petit  larceny,  that  is  theft  to  inferior  amount, 
(though  also  described  as  felony,)  was  punislied  with  imprisonment  or  whipping  only.t 
However,  by  the  law  relating  to  benefit  of  clergy,  (see  c.'AA.p.  517,  as  latterly  modified;) 
persons  who  committed  simple  larceny  only,  though  to  the  amount  of  more  than  twelve 
pence,  or  indeed  to  any  amount  whatever,  were,  in  fact,  excused  the  pains  of  death,  pro- 
vided it  were  the  first  offence,  and  provided  tlie  benefiDtof  clergy  had  not  been  taken 
away  from  the  particular  species  of  thefl,  by  some  express  statute  as  was  very  frequently 
the  case,  (4  Black.  Com.  237.)  and  when  the  capital  punishment  was  thus  taken  away, 
were  formerly  liable  to  be  burnt  in  the  hand,  or  whipped,  or  in  more  modern  times,  to  be 
whipped,  or  transported  for  seven  years,  which  latter  punishment  might  also,  latterly,  be 
inflicted  in  lieu  of  the  common  law  penalties,  on  persons  convicted  of  petit  larceny,  (4 
Geo.  I.  c.  11.  19  Geo.  III.  c.  74.  4  Black.  Cam.  237.)  AnA  such  was  the  state  of  the 
law  on  this  subject,  as  late  as  the  year  1827,  when  by  statute  7  t^  8  Geo.  IV.  c.  29.  ss.  3, 
4.  it  was  provided  that  every  person  convicted  of  simple  larceny,  of  any  amount,  (all 
distinctions  between  grand  and  petit  larceny,  being  by  the  same  statute  abolished,)  shall 
be  liable  to  be  transported  for  seven  years,  or  imprisoned  for  not  more  than  two  years: 
such  imprisonment  to  be  with  hard  labor  and  solitary  confinement,  and  (if  the  offender 
be  a  male)  to  be  accompanied  with  whipping  at  the  discretion  of  the  court.  See  chap.  44-. 
note,  p.  517.  In  certain  cases,  however,  where  the  larceny  relates  to  a  subject  for  which 
the  policy  of  the  law  provides  with  more  anxiety,  the  punishment  is  more  severe.  For  by 
74-8  Geo.  IV.  c.  29.  s.  16.  (amended  as  to  punishment  by  7  Will.  IV.  ^  I  Vict.  c.  90.)  if 
any  person  shall  steal  to  the  value  often  shillings,  any  goods  or  articles  of  silk,  woollen, 
linen,  or  cotton,  or  of  any  one  or  more  of  those  materials,  mixed  with  each  other,  or  mixed 
with  any  other  material,  whilst  placed,  laid  or  exposed  during  any  stage,  process,  or  pro- 
gress of  manufacture,  in  any  building,  field,  or  other  place,  he  shall  be  transported  for  a 
term  not  exceeding  fifteen  years,  or  less  than  ten  years,  or  imprisoned  for  a  term  not  ex- 
ceeding  three  years,  with  hard  labor  and  solitary  confinement,  if  the  court  think-fit,  during 


*  This  sum,  (says  Blackstone,  vol,  iv.  p.  237.)  was  the  standard  in  the  time  of  king 
Athelsta n,  a.nd  he  observes  that  afterwards,  in  the  reign  of  king  Henry  1.  one  shilling 
was  the  stated  value  at  the  Exchequer,  of  a  pasture-fed  ox,  {Dial,  de  Scucc.  I.  I.  s.  7,) 
and  that  if  we  should  suppose  this  shilling  to  mean  that  solidus  legalis  mentioned  by 
Lyndeuode,  (Prov.  1.  3.  c.  13,)  or  the  72d_part  of  a  pound  of  gold,  it  would  be  equal  to 
13s.  I4d.  of  the  present  standard. 

t  The  progressive  reduction  in  the  value  of  money,  while  death  continued  to  be  the 
sentence  for  theft,  to  the  same  amount  as  before,  justified  the  complaint  of  Sir  H.  Spel- 
vian,  (Gloss.  350,)  that  while  every  thing  else  living  became  dearer,  the  life  of  man  liad 
continually  grown  cheaper. 

t  3  Inst.  218.  Hawk.  b.  I.  c.  33.  s.  30.  4  Block.  Com.  237.  These  denominations  of 
grand  and  petit  larceny,  are  now  at  an  end,  by  7  tSf  8  Geo.  IV.  c.  29.  s.  2.  which  gives  to 
thefts  to  the  amount  of  twelve  pence,  and  under,  the  same  effect  as  to  thefts  of  greater 
amount.  See  a  passage  from  Knighfs  Hist,  of  England,  B,  I.  c.  7.  in  a  note  at  the  end 
of  this  volume. 


HISTORIA  PLACITORUM  CORONA.  516*^ 

such  imprisonment.*  And  by  sect.  25,  (amended  as  to  punishment,  by  7  Will.lV.  Sfl  Vict, 
c.  90.)  if  any  person  shall  steal  any  horse,  mare,  gelding-,  colt,  or  filly;  or  any  bull,  cow,  ox, 
heifer,  or  calf;  or  any  ram,  ewe,  sheep,  or  lamb;  or  shall  wilfully  kill  any  of  such  cattle, 
with  intent  to  steal  the  carcase  or  skin,  or  any  part  of  the  cattle  so  killed,  he  shall  be 
guilty, of  felony,  and  be  liable  to  the  same  punishments  as  last  above  particularized. t 

The  additional  severity,  in  these  instances,  is  owing  to  the  difficulty  tliere  would 
othervvi.se  be  in  preserving  goods  so  easily  carried  off.  Upon  which  principle  the  Roman 
law  punished  more  severely  than  other  thieves,  the  abifrii  or  stealers  of  cattle,  {Ff.  47. 
t,  14.)  and  the  balnearii  or  such  as  stole  the  clothes,  of  persons  who  were  washing  in  the 
public  baths,  {lb.  t.  17.)  both  which  constitutions  seem  to  be  borrowed  from  the  laws  of 
Athens,  (Pott.  Antiq.  b.  1.  c.  26.)  And  so,  too,  the  ancient  Goths  punished  with  unrelent- 
ing  severity  thefts  of  cattle,  or  corn  that  was  reaped  and  left  on  the  field.  Such  kind  of 
projierty  which  no  human  industry  can  sufficiently  guard,  being  esteemed  under  the  pe- 
culiar custody  of  heaven.     {Sliern.  de  Jure  Goth.  1.  3.  c.  5.) 

The  offijiice  which  we  have  been  hitherto  considering,  is  simple  larceny  as  it  existed 
at  comtnon  law;  but  in  connexion  with  this  offence,  and  proper  for  consideration  under 
the  same  head,  is  the  crime  of  simple  stealing,  {or  theft)  of  things  not  the  subject  of  lar- 
ceny at.  common  law.  For  in  progress  of  time  it  was  found  necessary  to  extend  the 
protection  of  the  penal  laws  to  many  of  those  subjects  of  which  the  ancient  law  of 
larceny  took  no  account;  and  acts  of  parliament  were  accordingly  passed  from  time 
to  time  by  which  punishments  w'ere  imposed  for  thefts  committed  in  respect  of 
various  kinds  of  property  so  circumstanced,  and  though  these  statutes  have  been  since 
repealed,  the  same  general  object  has  been  pursued  in  the  7  iSf  8  Geo.  IV.  c.  29,  passed 
"  For  consolidating  and  amending  the  laws  in  England  relative  to  larceny,  and  other 
offences  connected  therew-ith."  By  this  act- provisions  are  made  against  stealing  "valu- 
able securities,"  such  as  bonds,  bills,  and  the  like,  (7^8  Geo.  IV.  c.  29.  s.  5,)  and  many 
other  subjects  of  property,  of  which  the  enumeration  will  be  found  in  a  note  below,t  so 
that  it  may  be  laid  down  in  general  terms,  that  stealing  has  now  become  an  offence  liable 
to  punishment  or  penalty  in  regard  to  all  movables  whatever.  We  may  also  remark 
with  respect  to  the  kinds  of  stealing  thus  created  by  statute  in  supplement  to  the  ancient 
law  of  larceny,  that  all  the  common  law  doctrines  relative  to  larceny  which  we  have 
already  had  occasion  to  notice,  are  in  general  j^pplicable  to  thefts  of  this  description  also, 
{Rex  V.  Si.  John,  T  C.  Sf  P.  324.)  though  they  are  "not  technically  denominated  larcenies, 
(see  Rex  v.  Gooch,  S  C  Sf  P.  293;)  and  that  their  punishment  is  in  many  cases  identical. 
In  many  instances,  however,  they  do  not  amount  like  larceny  at  common  law  to  a  felony, 
but  to  a  misdemeanor  only,  and  are  visited  with  some  lighter  degree  of  punishment, 
and  there  are  several  kinds  of  them  not  assignable  to  the  class  either  of  felony  or  misde- 
meanor, but  restrained  b}'  fixed  pecuniary  penalties  only,  recoverable  in  a  summary  way 
by  information  before  a  justice  of  the  peace. 

We  have  seen  that  larceny  may  not  only  be  simple,  but  combined  with  circumstances 
of  aggravation,  which  is  described  in  our  books  as  mixed,  compound  or  complicated 
larceny,  (4  Bla.  Com.  239  ;  Hawk. P.  C.  B.  1.  c.c.  33,  34  ;)  and  this  is  not  only  like  simple 
larceny  felonious,  but  is  felony  of  a  more  penal  character.  We  will  therefore  now  consider, 

Larceny  from  a  dwelling-house,  shop,  warehouse,  or  counting-house. — Larceny  from  the 

*  As  to  the  former  state  of  the  law,  with  respect  to  stealing  woollen  cloth,  linens,  fus- 
tians, calicoes,  or  cotton  goods  from  the  place  of  manufacture,  see  22  Car.  2.  c.  5.  15  Geo, 
II.  c.  27.  18  Geo.  II.  c.  27-51.  Geo.  III.  c.  41.  4  Geo.  IV.  c.  53. 

t  The  punishment  of  horse  and  cattle  stealing  by  7  4'  '^  C'eo.  IV.  c.  29.  s.  25.  was 
death,  as  it  had  previously  been,  (without  benefit  of  clergy,)  by  the  statutes  (now  repealed 
bv  7  <^  8  Geo.  IV.  c.  27.)  of  I  Edw.  VI.  c.  12.  2  «^  3  Edw.  VI.  c.  33.  31  Elizabeth,  c.  12. 
14  Geo.  II.  c.  6.  15  Geo.  II.  c.  34.  Afterwards  it  was  reduced  by  2  &  3  Will.  IV.  c.  62. 
to  transportation  for  life,  to  which,  by  3  ^  4  Will.  IV.  c.  44.  previous  imprisonment  with 
■^r  withotit  hard  labour,  might  be  superadded. 

'  X  See  7  c^r  8  Geo.  IV.  c.  29.  s.  21.  as  to  stealing  records  and  judicial  documents;  s.  22. 
stealing  or  destroying  wills;  s.  23.  stealing  documents  of  titles;  s.  26.  deer;  s  30.  hares 
or  conies;  s.  31.  beasts  or  birds;  s.  33.  pigeons;  s.  34.  fish;  s.  36.  oysters;  s.  37.  ores  la 
mines,  (fee;  s.s.  38,  39.  trees  or  shrubs,  &c. ;  s.40.  fences,  stiles,  gates,  &c.;  s.  42.  plants, 
fruits,  &c.;  s.  44.  fixtures  in  houses,  squares,  or  street  fences  ;  7  Will.  IV.  Sf  1  Vict.  c.  87. 
s.  8.  as  to  plundering  wrecks;  8  <^  9  Vict.  c.  47.  as  to  stealing  dogs.  A  variety  of  ante- 
cedent  statutes  that  had  been  passed  with  the  same  object  of  supplying  the  defects  of  the 
ancient  law  in  this  particular,  and  that  are  noticed  by  Blackslone,  vol,  i\.  p.  233,  &c.  are 
now  repealed  by  7^-8  Geo,  IV.  c.  27. 


516'^  HISTORIA  PLACITORUM  CORONiE. 

house,  though  it  seems  to  have  a  higher  degree  of  guilt  than  simple  larceny,  yet  was  not 
at  all  distinguished  from  the  other  at  common  law,  {Hawk.  P.  C.  B.  1  c.  36.)  unless  where 
it  were  accompanied  with  the  circumstances  of  breaking  the  house  by  night,  and  then  it 
fell  under  anotlier  description,  viz.  that  of  burglary.  But  afterwards,  by  several  acts  of 
parliament,  the  history  of  vvliich  is  ingeniously  deduced  by  a  learned  modern  writer, 
\Barr.  on  Statutes,  375,  Sfc.)  who  has  shown  tiiem  to  liave  gradually  arisen  from  our  im- 
provements in  trade  and  opulence,  the  benefit  of  clergy  was  taken  from  larcenies  com- 
mitted in  a  house  in  almost  every  instance,  as  also  from  those  committed  in  shops,  ware- 
houses, coacli-houses  or  stables,  so  that  the  capital  sentence  to  which  they  were  subject  as 
larcenies  took  effect.  These  acts,  however,  are  all  now  repealed,  and  the  present  law  on 
the  subject  is  governed  by  7  Sf  8  Geo.  IV.  c.  29.  and  7  Will.  IV.  6f  1  Vict.  c.  86.  By 
the  first  of  these  acts  amended  as  to  punishment  by  7  Will.  IV.  Sf  1  Vict.  c.  90,*  if  any 
person  shall  break  and  enter  any  dwelling-house  and  steal  therein  any  chattel,  money  or 
valuable  security  to  any  value  whatsoever,  or  shall  break  and  enter  any  building  and 
steal  therein  any  chattel,  money  or  valuable  security,  such  building  being  within  the 
curtilage  of  a  dwelling-house  and  occupied  therewith,  but  not  being  part  thereof  accord, 
ing  to  the  provisions  of  the  first-mentioned  act,  (7  S(  8  Geo.  IV.  c.  29.  s.  13.)  or  shall 
break  or  enter  any  shop,t  warehouse  or  counting-house,  and  steal  therein  any  chattel, 
money,  or  valuable  security,  the  offender  in  any  of  such  cases  shall  be  transported  for  a 
term  not  exceeding  fifteen  years  nor  less  than  ten,  or  be  imprisoned  for  a  term  not  ex- 
ceeding three  years,  to  which  imprisonment,  hard  labour,  and  solitary  confinement  may 
be  superadded  if  the  court  think  fit.  And  it  is  further  enacted  by  7  &  8  Geo.  IV,  c.  29. 
s.  12.  (amended  as  to  punishment  by  7  Will.  IV.  c^-  1  Vict.  c.  90.)  and  7  Will.  IV.  Sf 
1  Vict.  c.  86.  s.  5.  that  whoever  shall  steal  in  any  dwelling-house  any  chattel,  money  or 
valuable  security,  to  the  value  in  the  whole  of  five  pounds  or  more,  or  shall  steal  any 
property  in  any  dwelling-house,  and  shall  by  any  menace  or  threat  put  any  one  being 
therein  in  bodily  fear,  shall  be  guilty  of  felony,  and  liable  to  the  same  punishments  as 
last  above  particularized.! 

Larceny  from  a  church,  or,  (as  it  is  sometimes  called)  sacrilege.  By  stat.  23'.  Hen, 
VIII.  c.  1.  and  I  Edw.  VI.  c.  12.  it  was  felony  without  benefit  of  clergy  to  commit 
larceny  above  the  value  of  tvvelvepencc  in  a  church  or  chapel,  (post,  p.  518.)  But  these 
statutes  are  now  repealed  ;  and  by  7  Sf  8  Geo.  IV.  c.  29.  s.  10.  (amended  as  to  punish- 
ment by  5  c^  6  Will.  IV.  c.  81.  and  6  i^  7  Will.  IV.  c.  4.)  if  any  person  shall  break  and 
enter  any  church  or  chapel,§  and  shall  steal  therein  any  chattel,  or  having  stolen  ahy 
chattel  in  any  church  or  chapel,  shall  break  out  of  the  same,  he  shall  be  transported  for 
life,  or  not  less  than  seven  years,  or  imprisoned  for  not  more  than  three  years,  with  hard 
labour  and  solitary  confinement  at  the  discretion  of  the  court  or  judge  during  the  period 
of  imprisonment.  , 

Larceny  from  the  person,  which  is  either  by  privately  stealing,  or  by  open  and  violent 
assault,  usually  called  robbery.  The  offence  of  privately  stealing  from  a  man's  person,  as 
by  picking  his  pocket,  or  the  like,  privily,  without  his  knowledge,  was  debarred  of  the 
benefit  of  the  clergy  so  early  as  by  the  statute  8  Eliz.  c.  4.||  a  severity  which  seems  to 
be  owing  to  the  ease  with  which  offences  are  committed,  the  difficulty  of  guarding 
against  them,  and  the  boldness  with  which  they  were  practised  (even  in  the  queen's  court 
and  presence)  at  the  time  when  this  statute  was  made,  besides  that  this  was  an  infringe- 


*  It  had  been  previously  amended  as  to  punishment  by  2  ^  3  Will.  IV.  c.  62.  and 
3  S(4  Will.lV.c.U. 

t  To  fall  under  this  description  the  place  must  be  a  shop  for  the  sale  of  goods,  and  not 
a  mere  workshop.     Reg.  v.  Saunders,  9  C.  Sf  P.  79. 

t  The  former  state  of  the  law  as  to  larceny  from  a  house,  shop,  &c.  was  very  compli- 
Gated.  It  depended  on  statutes  5  ^  Q  Edw.  VI.  c.  9.  3'.)  Eliz.  c.  15. 3  4"  4  W.  Sf  M.  c.  9. 
10  <^  11  Will.  III.  c.  23;  all  which  are  now  repealed  by  7  (^  8  Geo.  IV.  c.  27.  By  these 
statutes  the  amount  of  the  property  stolen  as  being  above  twelve  pence,  or  of  the  value 
of  five  shillings  or  forty  shillings  constituted  in  the  several  cases  respectiveljr  a  material 
ingredient  in  the  offence.  •    -        . 

(j  As  to  what  buildings  come  under  this  provision,  vide  Rex  v.  Wheeler,  3  Gar.  ^  P. 
585.  Rex  v.  Richardson,  6  Car.  Sf  P.  335.  Rex  v.  Nixon,  7  Car.  &  P.  442.  Reg.  v. 
Evans,  1  Car.  Sf  M.  298. 

II  This,  it  will  be  observed,  applies  only  to  the  case  where  the  thing  stolen  was  of  the 
value  of  more  than  twelve  pence;  for  if  it  was  below  that  value,  so  as  to  reduce  the 
offence  to  petit  larceny,  there  was  no  need  of  the  benefit  of  clergy,  the  sentence  not  being 
capital.     Hawk.  P.  C.  b.  1.  c.  35.  s.  4. 


HISTORIA  PLACITORUM  CORONA.  516' 

ment  of  property  in  the  manual  occupation  or  corporal  possession  of  the  owner,  which 
was  an  offence  even  in  a  state  of  nature:  and  therefore  the  saccularii,  or  cut-purses, 
were  more  severely  punished  than  common  thieves  by  the  Roman  and  Athenian  laws. 
(Ff.  47.  11.  7.  Pott.  Antiq.  1.  1.  c.  26.)  But  this  statute  is  now  repealed  by  7  4-  8  Geo. 
IV.  c.  27.  and  new  provisions,  of  which  we  shall  presently  have  occasion  to  speak  more 
at  large,  are  made  by  7  Will.  IV.  «Sc  1   Vict.  c.  87. 

Open  and  violent  larceny  from  the  person  or  robbery,  the  rapine  of  the  civilians,  is 
ihe  unlawful  and  forcible  taking  from  the  person  of  another  of  goods  or  money  to  any 
value  by  violence  or  putting  iiim  in  fear.  Hawk.  P.  C.  b.  1,  c.  34,  s.  2.  1.  There 
must  be  an  unlawful  taking,  otherwise  it  is  no  robbery.*  On  the  other  hand,  if  the 
thief  having  once  taken  a  purse  returns  it,  still  it  is  a  robbery.  Rez  v.  Reot,  1  Leach, 
C.  C.  228.  2.  It  is  immaterial  of  what  value  the  thing  taken  is,  a  penny  as  well  as  a 
pound,  thus  forcibly  extorted  makes  a  robbery.  Hawk.  P.  C.  b.l.  c.  34,  s.  16.  3.  Lastly, 
the  taking  must  be  by  force  or  a  previous  putting  in  fear,  which  makes  the  violation 
of  the  person  more  atrocious  tlian  privately  stealing.  For  according  to  tiie  maxim  of 
the  civil  law,  (Ff.  47.  2-4,  xxii.)  qui  vi  rapuil  fur  improbior  esse  videtur.  Tiiis  pre- 
vious violence,  or  putting  in  fear,  is  the  criterion  that  distinguishes  robbery  from  other 
larcenies.  For  if  one  privately  steals  a  chattel  from  the  person  of  another,  and  aftel*. 
wards  keeps  it  by  putting  him  in  fear,  this  is  no  robbery,  for  the  fear  is  subsequent: 
{post  p.  534.)  Not  that  it  is  indeed  necessary,  though  usual  to  lay  in  the  indictment 
that  the  robbery  was  committed  hy  putting  into  fear;  it  is  sufficient  if  laid  to  be  done 
by  violence.  {Trin.  Term,  3  Anne,  by  all  the  judges.)  And  when  it  is  laid  to  be  done 
by  putting  into  fear,  tiiis  does  not  imply  any  great  degree  of  terror  or  affright  in  the 
party  robbed;  it  is  enough  that  so  much  force  or  threatening  by  word  or  gesture  be 
used  as  might  create  an  apprehension  of  danger,  or  induce  a  man  to  part  with  his  pro- 
perty without  or  against  his  consent.  (Fosi.  128.)  Thus  if  a  man  be  knocked  down 
without  previous  warning,. and  stripped  of  his  property  while  senseless,  though  strictly 
he  cannot  be  said  to  he.  put  into  fear,  yet  this  is  undoubtedly  a  robbery.  Or  if  a  person 
with  a  sword  drawn  begs  an  alms,  and  I  give  it  to  him  through-mistrust  and  appre- 
hension  of  violence,  this  also  falls  within  the  definition  of  the  same  crime.     Hawk.  P.  C. 

b.  1,  c.  34,  s.  8.)  So  if  under  a  pretence  of  sale  a  man  forcibly  extorts  money  from 
another,  neither  shall  this  subterfuge  avail  him.  But  it  is  doubtful  whether  the  forcing 
a  higgler  or  other  chapman  to  sell  his  wares,  and  giving  him  the  full  value  of  them, 
amounts  to  so  heinous  a  crime  as  robbery.  {^Ibid.  s.  14.)  This  species  of  larceny  was 
debarred  of  the  benefit  of  clergy  by  statute  23  Hen.  VIII.  c.  1,  and  other  subsequent 
statutes,  not  indeed  in  general,  but  only  when  committed  in  a  dwelling-house  or  in  or 
near  the  king's  highway.  A  robbery,  therefore,  in  a  distant  field  was  not  punished 
with  death,  [post  p.  535,)  but  was  open  to  the  benefit  of  clergy  till  the  statute  3  .^  4 
W.  ^  M.  c.  9,  which  took  away  clergy  from  both  principals  and  accessaries  before  the 
fact  in  robbery  wheresoever  committed.  But  all  these  statutes,  as  well  as  the  8  Eliz.  c.  4, 
with  respect  to  privately  stealing  from  the  persons,  are  now  repealed  by  7  ^  8  Geo.  IV. 

c.  27.  And  by  7  Will.  IV.  S^  1  Vict.  c.  87,  provisions  are  now  made  against  both 
species  of  offences,  with  distinctions  as  regards  robbery,  suitable  to  the  aggravations 
with  which  that  crime  may  have  been  committed.  This  statute  enacts  that  whosoever 
shall  rob.  any  person,  and  at  the  time  or  immediately  before  or  immediatehj  after  such  rob- 
bery,  shall  stab,  cut,  or  wound  any  person,  shall  suffer  death,  and  that  whoever  being 
armed  with  any  offensive  weapon  or  instrument  shall  rob  or  assault  with  intent  to 
rob  any  person,  or  shall  together  with  one  or  7nore  person  or  persons  rob  or  assault 
with  iment  to  rob  any  person,  or  shall  rob  any  person,  and  at  the  time  of  or  imme- 
dialdy  before'  or  immediately  after  such  robbery  shall  beat,  strike,  or  use  any  other  per- 
sonal violence  to  any  person,  shall  be  guilty  of  felony  and  be  transported  for  life,  or  not 
less  than  fifteen  years,  or  imprisoned!  for  not  more  than  three  years;  that  whoever  shall 
accuse  or  threaten  of  such  abominable  crime  as  in  the  act  specified,  or  of  any  attempt  or 
solicitation  tlifreto,  and  extort  property  by  such  intimidation,  shall  incur  the  like  penalty; 
that  whoever  shall  rob  any  person,  or  steal  any  property  from  the  person  of  another, 


»  A  mere  attempt  to  rob  was  held  to  be  a  felony  so  late  as  Henry  IV's.  time:  post 
p.  532;  but  afterwards  it  was  taken  to  be  only  a  misdemeanor  until  7  Geo.  II.  c.  21, 
which  made  it  transportable  felony.  This  statute  was  repealed  by  4  Geo.  IV.  c.  54,  which 
is  itself  repealed  by  7  ^  8  Geo.  IV.  c.27.  And  as  to  the  present  law,  vide  7  Will.  IV.  tV 
1  Vict.  c.  87.  •  i-  '  J 

t  In  any  case  in  which  imprisonment  may  be  awarded  under  this  statute,  hard 
labour  and  solitary  confinement  may  be  added.     7  Will.  IV.  Sf  1  Vict.c.  87,  s.  10. 


516^  HISTORIA  PLACITORUM  CORONA. 

shall  be  transported  for  a  term  not  exceeding  fifteen  years  nor  less  than  ten,  or  be  im- 
prisoned for  not  more  tiian  three:  that  whoever  shall  assault  any  person  with  intent  to 
rob,*  siiall  be  guilty  of  felony,  and  be  imprisoned  for  not  more  than  three  years;  and 
•that  whoever  with  menaces  or  force  shall  demand  any  property  of  any  person  with  intent 
to  steal  the  same,  shall  incur  the  like  penalty.  In  connexion  also  with  the  offence  com- 
prised in  this  statute  of  extorting  money  by  threat  of  accusation,  we  may  notice  the 
provision  of  the  prior  act  of  7  t.y  8  Geo.  IV.  c.  29,  s.  8,t  by  which  it  is  enacted,  that  if 
any  person  shall  knowingly  send  or  deliver  any  letter  or  writing,  demanding  of  any 
person  with  menaces,  and  without  reasonable  or  probable  cause  any  chattel,  money,  or 
valuable  security,!  or  shall  accuse  or  threaten  to  accui^e,  or  shall  knowingly  send  or  de- 
liver  any  letter  or  writing  accusing  or  threatening  to  accuse  any  person  of  a  crime 
punishable  by  law  with  death,  transportation,  or  pillory,  or  of  any  assault  with,  intent 
to  commit  rape,  or  of  attempt  to  commit  rape,  or  of  any  such  infamous  crime  as  in 
the  act  mentioned  with  intent  to  extort  any  ciiattel,  money,  or  valuable  security,  such 
offender  sliall  be  guilty  of  felony,  and  be  transported  for  life  or  not  less  than  seven 
years,  or  imprisoned  (with  or.  without  hard  labour  and  solitary  confinement)  for  not 
mor-e  than  four  years  ;  and,  if  a  male,  be  once,  twice,  or  thrice  whipped,  if  the  court 
think  fit,  in  addition  to  the  imprisonment.  -  '' 

Larceny  by  clerks,  servants,  or  agents. — Special  provision  against  larcenies  by  servants 
was  made  by  the  statutes  33  Hen.  VI.  c.  1.  and  21.  Hen.  VIII.  c.  7.  See  ante,  p.  51.j. 
note  16.  both  which  are  now  repealed  by  7^8  Geo.  IV,  c.  27.  But  hy  7  Sf  8  Geo.  IV. 
c.  29.  s,  46,  it  is  provided  that  if  any  clcrk§  or  servanlH  shall  steal  any  chattel,  money,  or 
valuable  security,  belonging  to,  or  in  the  possession  or  power  of  his  master,  he  shall  be 
transported  for  a  term  not  exceeding  fourteen  years,  nor  less  than  seven  years,  or  im- 
prisoned (with  or  without  hard  labour  and  solitary  confinement)  for  a  term  not  exceeding 
three  years,  and  if  a  male,  once,  twice  or  thrice  whipped,  if  the  court  think  fit,  in  addi- 
tion to  the  imprisonment.  In  addition  to  which  tliere  .are  separate  provisions  against 
embezzlement,  a  crime  distinguished  from  larceny,  properly  so  called,  as  being  commit- 
ted  in  respect  of  property  which  is  not  at  the  time  in  the  actual  or  legal  possession  of  the 
owner.  A.s  to  this,  it  is  enacted  by  the  same  statute,  sect.  47,  that  if  any  clerk  or  ser- 
vant, or  any  person  employed  for  the  purpose,  or  in  the  capacity  of  a  clerk  or  servant, 
shall  by  virtue  of  such  employment,  receive  or  take  into  his  possession  any  chattel,  money, 
or  valuable  security  for,  or  in  the  name,  or  on  the  account  of  his  master,ir  and  shall  frau- 
dulently embezzle  the  same,  or  any  part  thereof,  every  such  offender  shall  be  deemed  to 
have  feloniously  stolen  the  same,  and  shall  suffer  the  same  punishment  as  last  above  par- 
ticularized: and  by  sect.  49,  that  if  any  money  or  security  for  the  payment  of  money, 
shall  be  intrusted  to  any  banker,  merchant,  broker,  attorney,  or  other  agent,  with  any 
direction  in  writing,  to  apply  such  money,  or  any  part  thereof,  or  the  proceeds,  or  any 
part  of  the  proceeds  of  such  security,  for  any  purpose  specified  in  such  direction,  and  h^,. 
shall,  in  violation  of  good  faith,  and  contrary  to  the  purpose  so  specified,  in  any  wise 
convert  to  his  own  use  or  benefit  such  money,  security  or  proceeds,  or  any  part  thereof,** 
every  such  offender  shall  be  guilty  of  a  misdemeanor,  and  be  transported  for  a  term  not 
exceeding  fourteen  years,  or  less  than  seven  years,  or  suffer  such  other  punishment,  by 
fine  or  imprisonment,  or  both,  as  the  court  shall  award,  and  that  if  any  chattel  or  valu- 
able  security,  or  any  power  of  attorney  for  the  sale  or  transfer  of  any  share  or  interest 
in  any  public  stock  or  fund  of  this  country,  or  any  foreign  state,  or  in  any  fund  of  any 
body  corporate,  company  or  society  shall  be  intrusted  to  any  banker,  merchant,  broker, 
attorney,  or  other  agent,  for  safe  custody,  or  for  any  special  purpose,  without  any  autho-, 
rity  to  sell,  negotiate,  transfer  or  pledge;  and  he  shall,  in  violation  of  good  faith,  and 
contrary  to  the  object  of  the  trust,  sell,  negotiate,  transfer,  pledge,  or  iii  any  manner 
convert  to  his  own  use  or  benefit  such  chattel  or  security,  or  the  proceeds  of  the  same,  op 
any  part  thereof,  or  the  share  or  interest  in  the  stock  or  fund,  to  which  such  power  of 


"*  As  to  this  provision,  vide  Reg.  v.  Huxley,  1  Car.  Sj  M.  596.  * 

+  Et  vide  as  to  letters  threatening  to  kill,  burn,  &c.     4  Geo.  IV.  c.  54,  si. 3. 

I  As  to  what  is  a  threatening  letter  under  this  statute,  vide  Rex  v.  Pickford,  4  Car.  Sf 
P.  227. 

§  As  to  larceny  by  a  clerk  in  a  public  office,  vide  Rex  v.  Lovell,  2  M.  S^  Rob.  236. 

II  As  to  who  is  a  setvant,  within  the  meaning  of  this  section,  vide  Reg,  v.  Haydon, 
ICar.Sf  P.  445.  ^ 

IT  Embezzlement  of  money  by  a'servant  not  authorized  to  receive  it,  is  not  within  this 
section.  Rex  v.  Thorley,  I  M.  C.  C.  R.  343.    ' 

**  As  to  this  provision,  see  Rex  v.  White,  4  Car,  Sf  Pay.  46. 


HISTORIA  PLACITORUM  CORONA.  516^ 

attorney  shall  relate,  or  any  part  thereof,  every  such  offender  shall  incur  the  same  penal- 
ties as  are  imposed  in  the  case  last  before  mentioned.*  It  is  provided,  sect.  50,  however, 
that  this  shall  not  affect  any  trustee,  in  or  under  any  instrument  whatever,  or  any  mort- 
gage of  any  property,  real  or  personal,  in  respect  of  any  act  done  by  such  trustee  or 
mortgagee,  in  relation  to  the  property  comprised  in,  or  affected  by  any  such  trust  or 
mortgage,  nor  shall  restrain  any  banker,  merchant,  broker,  attorney,  or  otiier  agent,  from 
receiving  any  money  which  shall  be  or  become  actually  due  and  payable  upon  any  valu- 
able security,  according  to  the  effect  and  tenor  thereof,  in  such  manner  as  he  might 
otherwise  have  done,  nor  from  selling,  transferring,  or  otherwise  disposing  of  any  secu- 
rities or  effects  in  his  possession,  upon  which  he  shall  have  any  lien,  claim,  or  demand, 
entitling  him  by  law  so  to  do,  unless  such  sale,  transfer,  or  other  disposal  shall  extend  to  a 
greater  number  or  part  of  such  securities  or  effects  than  shall  be  requisite  for  satisfying 
such  lien,  claim  or  demand.  By  the  same  statute,  sect.  51,  it  is  enacted,  that  if  any  factor 
or  agent,  intrusted  for  the  purpose  of  sale,  with  any  goods  or  merchandize,  or  intrusted 
with  any  bill  of  lading,  warehouse  keeper's  or  wharfinger's  certificate,  or  warrant  or 
order,  for  delivery  of  goods  or  merchandize,  or  any  of  the  said  documents  as  a  security 
for  any  money  or  any  negotiable  instrument,  borrowed  or  received  by  such  factor  or 
agent  at,  or  before  the  time  of  making  such  deposit  or  pledge,  or  intended  to  be  there- 
after borrowed  or  received,  he  shall  incur  the  same  penalties  as  in  the  two  former  cases, 
but  that  no  such  factor  or  agent  shall  be  liable  to  prosecution  for  depositing  or  pledging 
any  such  goods  or  merchandize,  or  any  of  the  aforesaid  documents,  in  case  the  same 
shall  not  be  made  a  security  for,  or  subject  to,  the  payment  of  any  greater  sum  of  money 
than  tiie  amount,  which  at  the  tinrc  of  such  deposit  or  pledge,  was  justly  due  and  owing 
to  such  factor  or  agent,  from  liis  principal,  together  with  the  amount  of  any  bill  or  bills 
of  exchange,  drawn  by,  or  on  account  of,  such  principal  and  acceptor^  by  such  factor  or 
agent. 

Larcenies  in  relation  to  the  post-office. — By  7  Will.  IV.  ^-  1  Vict,  c.  36.  s.  25,  every 
person  employed  under  the  post-office  who  shall,  contrary  to  his  duty,  open  or  procure 
or  suffer  to  be  opened,  or  wilfully  detain  or  delay,  or  procure  or  suffer  to  be  detained  or 
delayed  a  post  letter  shall  be  guilty  of  a  misdemeanor,  and  punished  by  fine  or  imprison- 
ment, or  both,  as  to  the  court  shall  seem  meet.  By  sect.  26,  every  person  so  employed 
who  shall  steal,  or  for  any  purpose  embezzle,  secrete,  or  destroy  a  post  letter,  shall  be 
guilty  of  felony,  punishable  with  transportation  for  seven  years  or  imprisonment  not  ex- 
ceeding three  years ;  and  if  any  letter  contain  any  chattel,  money,  or  valuable  security, 
then  with  transportation  for  life.t  By  sec/.  32,  every  person  so  employed  who  shall  steal, 
or  for  any  purpose  embezzle,  secrete,  or  destroy,  or  wilfully  detain  or  delay  in  the  course 
of  conveyance  or  delivery  by  post  any  printed  votes  or  proceedings  in  parliament,  or  atiy 
printed  newspaper,  or  other  printed  paper  sent  by  post  without  covers,  or  in  covers  open 
at  the  sides,  shall  be  guilty  of  a  misdemeanor,  punishable  by  fine  or  imprisonment,  or 
both,  as  to  the  court  shall  seem  meet.  These  provisions  relate  only  to  offences  by  per-- 
sons  employed  in  the  department  of  the  post-office ;  but  by  sects.  27  and  28,  er,ery  person 
who  shall  steal  out  of  a  post  letter-bag  or  a  post  letter  from  a  post  letter-bag,  or  from  a 
post-office,  or  officer  of  the  post,  or  a  mail,  or  shall  stop  a  mail  with  intent  to  rob  or 
search  the  same,  shall  be  guilty  of  felony,  and  be  transported  for  life.t  By  sect.  29,  every 
person  who  shall  steal  or  unlawfully  take  away  a  post  letter-bag,  sent  by  a  post-office 
packet,  or  a  letter  out  of  any  such  bag,  or  shall  unlawfully  open  any  such  bag,  shall  be 
guilty  of  felony,  and  transported  for  a  term  not  exceeding  fourteen  years.  By  sect.  30, 
every  receiver  of  a  post  letter,  post  letter-bag,  chattel,  money,  or  valuable  security  felo- 
niously stolen  under  the  post-office  acts,  knowing  the  same  to  have  been  so  stolen,  shall 
be  guilty  of  felony,  and  transported  for  life.  By  sect.  31,  every  person  who  shall  fraudu- 
lently retain,  or  wilfully  secrete,  or  keep  or  detain,  or  being  required  by  an  officer  of  the 
post-office,  neglect  or  refuse  to  deliver  up  a  post  letter  which  ought  to  have  been  delivered 
to  any  other  person,  or  a  post  letter-bag,  or  post  letter  which  shall  have  been  sent  and  losti 
shall  be  guilty  of  a  misdemeanor,  punishable  with  fine  and  imprisonment.  And  by  sects. 
41  Sf  42,  it  is  provided  generally,  that  every  person  convicted  of  an  offence  for  which 
transportation  for  life  is  awarded  by  that  act,  shall  be  liable  to  be  transported  either  for 
life  or  any  time  not  less  than  seven  years,  or  imprisoned  for  any  time  not  exceedmg  four 
years;  and  that  every  person  convicted  of  any  offence  punishable  according  to  the  post- 
office  acts  by  transportation -for  any  time  not  exceeding  fourleen  years,  shall  be  liable  to 

*  As  to  this  sectiojy,  vide  Rex  v.  Nettleton,  R.  Sf  M.  2,59. 

+  As  to  this  section,  vide  Reg.  v.  Raihbone,  1  Car.  Sf  M.  220 ;  Reg,  v.  Mence,  lb.  234. 

t  As  to  these  provisions,  vide  Reg.  v.  Harley,  1  Car.  Sf  Kir.  89. 


516^'  HISTORIA  PLACITORUM  CORONA. 

be  transported  for  any  time  not  exceeding^  fourteen  years,  or  less  than  seven  years — or 
imprisoned  for  any  time  not  exceeding  three  years;  and  that  in  all  cases  of  imprison* 
irient,  the  court  may  superadd  hard  labour  and  solitary  imprisonment.* 

Offences  against  tiie  post-office  in  the  United  Stntes  consist 

First.  Of  robbing  of  the  mail ;  and  Second,  Of  larceny  or  embezzlement  from  the 
mail. 

The  act  of  March  3d,  1825,.  provides  that  if  any  person  shall  rob  any  carrier  of  the 
mail  of  the  United  States,  or  other  person  entrusted  therewith,  of  such  mail,  or  of  part 
thereof,  such  offender  or  offenders  shall,  on  conviction,  be  imprisoned  not  less  than  five 
years,  nor  exceeding  ten  years;  and  if  convicted  a  second  time  of  a  like  ofience,  he  or 
they  shall  suffer  death ;  or  if,  in  effecting  such  robbeiy  of  the  mail  the  first  time,  the 
offender  shall  wound  the  person  having  custody  thereof,  or  put  his  life  in  jeopardy,  by 
the  use  of  dangerous  weapons,  sucli  offender  or  offenders  shall  suffer  death.  And  if  any 
person  shall  attempt  to  rob  the  mail  of  the  United  Slates,  by  assaulting  the  person  having 
custody  thereof,  shooting  at  him,  or  his  liorse  or  mule,  or  threatening  him  with  dan- 
gerous weapons,  and  the  robbery  is  not  effected,  every  such  offender,  on  conviction  there- 
of, shall  be  punished  by  imprisonment,  not  less  than  two,  nor  exceeding  ten  years.  And 
if  any  person  shall  steal  the  mail,  or  shall  steal,  or  take  from,  or  out  of,  any  mail,  or 
from  or  out  of,  any  post-office,  any  letter  or  packet;  or  if  any  person  shall  take  the  mail, 
or  any  letter  or  packet  therefrom,  or  from  any  post-office,  whether  with  or  without  the 
consent  of  the  person  having  custody  thereof,  and  shall  open,  enibezzle,  or  destroy  any 
such  mail  letter,  or  packet,  the  same  containing  any  article  of  value  or  evidence  of  any 
debts  due,  demand,  right  or  claim,  or  any  release,  receipt,  acquittance,  or  discharge,  or 
any  other  article,  paper,  or  thing  mentioned,  as  described  in  the  twenty-first  section  of 
this  act :  or  if  any  person  shall,  by  fraud  or  deception,  obtain  from  any  person  having  . 
custody  th.ereof,  any  mail,  letter,  or  packet,  containing  any  article  of  value,  or  evidence 
thereof,  or  either  of  the  writings  referred  to,  or  next  above  mentioned,  such  offender  or 
offenders,  on  conviction  thereof^  shall  be  imprisoned,  not  less  than  two,  nor  exceeding 
ten  years.  ■ 

And  if  any  person  shall  take  any  letter,  or  packet,  not  containing  any  article  of  value 
or  evidence  thereof,  out  of  a  post  office,  or  shall  open  any  letter  or  packet  which  shall' 
have  been  in  a  post  office,  or  in  custody  of  a  mail  carrier,  before  it  shall  have  been  de- 
livered to  the  person  to  whom  it  is  directed,  with  design  to  obstruct  the  correspondence, 
to  pry  into  another's  business  or  secrets,  or  shall  secrete,  embezzle,  or  destroy,  any  such 
mail,  letter,  or  packet,  such  offender  upon  conviction,  shall  pay  for  every  such  offence,  a 
sum  not  exceeding  five  hundred  dollars  and  be  imprisoned  not  exceeding  twelve  months. 
(Act  of  3(Z  March,  1825,  sect.  22.)    Peters's  Statutes  at  Large,  Vol.  IV.p.  107-108. 

If  any  person  shall  rip,  cut,  tear,  burn,  or  otherwise  injure,  any  valise,  portmanteau,  or 
other  bag,  used,  or  designed  to  be  used,  by  any  person  acting  under  the  authority  of  the 
postmaster  general,  or  any  person  in  whom  his  powers  are  vested,  in  a  conveyance  of 
any  mail,  letter,  packet,  or  newspaper,  or  pamphlet,  or  shall  draw,  or  break  any  staple, 
or  loosen  any  part,  lock,  chain  or  strap,  attached  to,  or  belonging  to  any  such  valise, 
portmanteau,,  or  bag  with  intent  to  rob,  or  steal  any  mail,  letter,  or  packet,  newspaper  or 
pamphlet,  or  to  render  either  of  the  same  insecure,  every  such  offender,  upon  conviction, 
shall  for  every  such  offence,  pay  a  sum  not  less  than  one  hundred  dollars,  nor  exceeding 
iive  hundred  dollars,  or  be  imprisoned  not  less  than  one  year,  nor  exceeding  three  years, 
at  the  discretion  of  the  court,  before  whom  such  conviction  is  had.  Every  person  who, 
from  and  after  the  passage  of  this  act,  shall  procure,  and  advise,  or  assist,  in  the  doing  or 
perpetration  of  any  of  the  acts  or  crimes  by  this  act  forbidden,  shall  be  subject  to  thg 
same  penalties  and  punishments  as  the  persons  are  subject  to  who  shall  actually  do  or 
perpetrate  any  of  the  said  acts  or  crimes  according  to  the  provisions  of  this  act.  Ibid, 
sect.  23. 

If  any  person  employed  in  any  of  the  departments  of  the  post  office  establishment,  shall  ' 
unlawfully  detain,  delay  or  open,  any  letter,  packet,  bag,  or  mail  of  letters,  with  which 
he  shall  be  entrusted,  or  which  shall  have  come  to  his  possession  and  which  are  intended  to 
be  conveyed  by  post;  or  if  any  person  shall  secrete,  embezzle  or  destroy,  any  letter  or 
packet  entrusted  to  such  persons  as  aforesaid,  and  which  shall  not  contain  any  security 
for,  or  assurance  relating  to  money  as  hereinafter  described,  every  such  offender  being 
thereof  duly  convicted  shall  for  every  such  offence  be  fiyed,  not  exceeding  three  hundred 
dollars,  or  imprisoned  not  exceeding  six  months,  or  botii,  according  to  the  circumstances 


*  Stealing  letters  sent  by  the  post  was  felony  without  benefit  of  clergy,  by  7  Geo.  III.  c. 
50.  repealed  by  7  Will.  IV.  ^  1  Vict.  c.  32. 


HISTORIA  PLACITORUM  CORONA.  516' 

and  aggravations  of  the  offence.  And  if  any  person,  employed  as  aforesaid,  shall  secrete, 
embezzle,  or  destroy,  any  letter  packet,  bag,  or  mail  of  letters  with  which  he  or  they 
shall  be  entrusted  or  wliich  shall  have  come  to  his  or  her  possession,  and  are  intended  to 
be  conveyed  by  post,  containing  any  bank  note,  or  bank  post-bill,  bill  of  exchange,  war- 
rant of  treasury  of  ihe -IJnited  Slates,  note  of  assignment  of  stock  in  the  funds,  letters  of 
attorney  for  receiving  annuities  or  dividends,  or  for  selling  stock  in  the  funds,  or  for 
receiving  the  interest  thereof,  or  any  letter  of  credit,  or  note  for,  or  relating  to,  payments 
of  moneys,  or  any  bond,  or  warrant,  draft,  bill,  or  promissory  note,  covenant,  contract, 
or  agreement  whatsoever,  for,  or  relating  to  the  payment  of  money,  or  the  delivery  of  any 
article  of  value,  or  the  performance  of  any  act,  matter  or  thing,  or  any  release,  acquittance, 
or  discharge  of  or  from  any  debt,  covenant  or  demand,  or  any  part  thereof;  or  any  copy  of 
any  record  of  any  judgment,  or  decree,  in  any  court  of  law,  or  chancery,  or  any  execution 
which  may  have  issued  thereon,  or  any  copy  of  any  other  record,  or  any  other  writing 
of  value,  or  any  writing  representing  the  same;  or  if  any  such  person  employed  as 
aforesaid,  shall  steal,  or  take,  any  of  the  same  out  of  any  letter,  packet,  or  bag,  or  mail  of 
letters  that  shall  come  to  his  or  her  possession,  such  person,  shall  on  conviction  for  any 
such  offence  be  imprisoned,  not  less  tiian  ten  years,  nor  exceeding  twenty  one  years.  And 
if  any  person  who  shall  have  taken  charge  of  the  mails  of  the  United  States,  shall  quit  or 
desert  the  same  before  such  person  delivers  it  into  the  post-office  kept  at  the  termination 
of  the  rout,  or  some  known  mail  carrier,  or  agent  of  the  general  post-office,  authorized  to 
receive  the  same,  every  such  person  so  offending  shall  forfeit,  and  pay  a  sum  not  exceed- 
ing five  hundred  dollars  for  every  such  offence.  And  if  any  person  concerned  in  carry- 
ing the  mail  of  the  United  States,  shall  collect,  receive  or  carry  any  letter,  packet,  or  shall 
cause  or  procure  the  same  to  be  done  contrary  to  this  act,  every  such  offender  shall  for- 
feit and  pay  for  every  such  offence,  a  sum  not  exceeding  fifty  dollars.  Act  3d  March^ 
1825.  sect.  21. 

If  any  person  shall  buy,  receive,  or  conceal,  or  aid  in  buying,  receiving,  or  concealing 
any  article  nientioned  in  the  twenty-first  section  of  this  act,  knowing  the  same  to  have 
been  stolen  or  embezzled  from  the  mail  of  the  United  Slates,  or  out  of  any  post-office,  or 
from  any  person  having  the  custody  of  the  said  mail,  or  the  letters  sent,  or  to  be  sent 
therein;  or  if  any  person  shall  be  accessary  after  the  fact,  to  any  robbery  of  the  carrier 
of  the  mail  of  the  United  Slates,  or  other  person  entrusted  therewith,  of  such  mail,  or  of 
part  thereof^  every  person  so  offending  shall,  on  conviction  thereof,  pay  a  fine  not  exceed- 
two  thousand  dollars,  and  be  imprisoned  and  confined  to  hard  labour  for  any  time  not 
exceeding  ten  years.  And  such  person  or  persons  so  offending  may  be  tried  and  con- 
victed without  the  principal  offender  being  first  tried,  provided  such  principal  offender 
has  fled  from  justice,  or  cannot  be  found  to  be  put  upon  his  trial.  Sect,  45.  Feters^  U.  S. 
Statutes  at  Large,  ml.  IV.  p.  lQl-8. 

As  to  what  constitutes  a  robbery  of  the  mail  and  putting  the  life  of  the  carrier  or  per- 
son entrusted  therewith  in  jeopardy,  see  U.  S.  v.  Hare,  U.  S.  C.  C.  Bait.  May,  1818. 
2  Wheeler's  Cr.  Cases,  12.  U.  S.  v.  Wood,  Philadelphia,  June,  1S18.  U.  S.  v.  Barnard, 
Trenton,  181!}.  U.S.  v.  Amenhiser,  Bait.  1823,  cited  in  Whartoii's  Am.  Crim.  Laid, 
574,  note. 

As  to  an  indictment  under  the  23  section  for  advising  to  rob  the  mail,  see  U.  S,  v.  Mills 
7  Peters'  S.  C.  Rep.  18. 

As  to  what  constitutes  a  dangerous  weapon  under  the  22d  section  of  the  act,  see  U.  S. 
v.  Wood,  3  W^ash.  Rep.  440. 

All  persons  present  at  the  commission  of  the  robbery  consenting  thereto,  aiding,  assist- 
ing, or  abetting  therein,  or  in  doing  any  act  which  is  the  constituent  of  the  offence,  are 
principals.  The  word  '  rob'  in  the  22d  section  is  used  in  its  common  law  sense.  The 
word  'jeopardy'  means  a  well  grounded  apprehension  of  danger  to  life  in  case  of  refusal 
to  yield  to  threats  or  resistance.      U.  S.  v.  IVilson,  1  Baldw.  R.  102. 

It  is  unnecessary  to  give  a  particular  description  of  a  letter  charged  to  have  been 
secreted  and  embezzled  by  a  postmaster  under  the  21st  section  of  the  act  of  March  3d, 
1825,  nor  to  describe  the  bank  notes  particularly  enclosed  in  the  letters,  U.  S.  v.  Lan. 
caster,  2  McLean,  R.  431.  It  is  enough  to  state  the  letter  came  to  the  hands  of  the  post- 
master in  the  words  of  the  statute  without  showing  where  it  was  mailed,  or  on  what 
route  it  was  conveyed.  Id.  To  convict  a  person  of  stealing  a  letter,  &c.  who  is  employed 
in  the  department,  such  employment  must  be  distinctly  alleged  and  proved.  U.  S.v.  Nott, 
1  McLean  Rep.  499. 

Offences  under  our  post-office  law  are  not  felonies,  but  misdemeanors;  and  in  such 
cases  less  nicety  in  the  form  is  required  than  in  indictments  for  felonies  in  England. 
U.  S.  v.  Lancaster,  cited  supra.    See  also  17.  S.  v.  Martin,  2  McLean's  Rep.  256. 
VOL.  I. — 46 


516''  HISTORIA  PLACITORUM  CORONiE. 

Larcenies  from  ships  or  docks,  wharfs  or  quays. — By  1^8  Geo.  IV.  c.  29.  s.  17, 
(amended  as  to  punishment,  by  7  Will.  IV.  c^  1  Vict.  c.  90.)  any  person  stealing  any 
goods  or  merchandize  in  any  vessel,  barge,  or  boat,  in  any  port  of  entry,  or  discharge,  or 
upon  any  navigable  river  or  canal,*  or  in  any  creek  belonging  to,  or  communicating 
with,  any  such  port,  river,  or  canal,  or  stealing  any  goods  or  merchandize  from  any 
dock,  wharf,  or  quay,  adjacent  to  any  such  port,  river,  canal,  or  creek,  shall  be  trans- 
ported  for  not  more  than  fifteen  years,  or  less  than  two  years,  or  imprisoned  for  not  more 
than  three  years,  with  hard  labour,  (if  the  court  thinks  fit,)  and  solitary  confinenient.t 

Having  now  considered  the  several  kinds  of  larcenies,  whether  simple  or  with  aggra- 
vation, we  must  refer,  under  the  same  head,  to  that  offence  so  closely  connected  with 
larceny  itself,  of  receiving  stolen  property,  knowing  the  same  to  have  been  stolen.  This  • 
offence  was,  at  common  law,  a  misdemeanor  only,  but  was  afterwards  made  felony  by 
several  statutes,  now  repealed,  (by  7  tSf  8  Geo.  IV.  c.  27.)  and  by  7  ^  8  Geo.  IV.  c.  29, 
s.  54,  it  is  provided,  that  if  any  person  shall  knowingly  receive  any  chattel,  money,  or 
valuable  security,  or  other  property  whatever,  the  stealing  or  taking  wliereof  shall  amount 
to  felony,  either  by  common  law  or  by  virtue  of  that  act,  every  such  receiver  shall  be 
guilty  of  felony,t  and  may  be  indicted  either  as  an  accessary  after  the  fact,  or  for  a  sub- 
stantive felony,  and  however  convicted,  shall  be  liable,  at  the  discretion  of  the  court,  to 
be  transported  for  a  term  not  exceeding  fourteen  years,  nor  less  than  seven  years,  or 
imprisoned  (with  or  without  hard  labour,  and  solitary  confinement)  for  a  term  not  ex- 
ceeding  three  years,  and  if  a  male,  to  be  once,  twice  or  tlirice  whipped,  if  the  court  think 
fit,  in  addition  to  the  imprisonment.  By  sect.  55,  if  any  person  shall  knowingly  receive 
any  chattel,  money,  or  valuable  security,  or  other  property  whatever,  the  stealing,  taking, 
obtaining,  or  converting  whereof,  is  made  an  indictable  misdemeanor,  by  the  act,  every 
such  receiver  shall  be  guilty  of  a  misdemeanor,  and  transported  for  seven  years,  or  im- 
prisoned, (with  or  without  hard  labour,  and  solitary  confinement,)  for  not  more  than  two 
years,  and  if  a  male,  once,  twice,  or  thrice  whipped,  if  the  court  think  fit,  in  addition  to 
the  imprisonment.  And  by  sect.  60,  where  the  stealing  of  any  property  whatever  is  pun-  ■ 
ishable  by  that  act,  on  summary  conviction,  either  for  every  offence,  or  for  the  first  and , 
second  offences  only,  or  for  the  first  offence  only,  the  guilty  receiver  shall  be  liable  for 
every  first,  second,  or  subsequent  offence  of  receiving,  to  the  forfeiture  and  punishment, 
to  wiiich  a  person  guilty  of  a  first,  second,  or  subsequent  offence  of  stealing  or  taking 
such  property  is,  by  the  said  act,  made  liable.  4  Steph.  Comm.  B.  VI.  c.  5. 

If  any  person,  within  any  of  the  places  under  the  sole  and  exclusive  jurisdiction  of  the 
United  States,  or  upon  the  high  seas,  shall  take  and  carry  away  with  an  intent  to  steal 
or  purloin  the  personal  goods  of  another,  such  person  so  offending,  his  counsellers,  aiders, 
and  abetters,  (knowing  of  any  privy  to  the  offences  aforesaid,)  shall,  on  conviction,  be 
fined  not  exceeding  the  fourfold  value  of  the  property  so  sold,  embezzled,  or  purloined; 
the  one  moiety  to  be  paid  to  the  owner  of  the  goods,  and  the  other  moiety  to  the  in- 
former and  prosecutor,  and  be  publicly  whipped,  not  exceeding  thirty-nine  stripes.  Act 
30th  April,  1790,  sect.  16.    I  Peters' s  St.  at  Large,  114. 

By  act  23d  August,  1842,  the  punishment  for  the  offences  mentioned  in  the  preceding 
article,  upon  conviction  thereof,  shall  be  by  fine  not  exceeding  one  thousand  dollars,  or 
by  imprisoninent  not  exceeding  one  year,  or  by  both  according  to  the  nature  and  aggra-. 
vation  of  the  offence. 

By  the  act  of  28th  February,  1839,  the  punishment  of  whipping  and  the  pillory  was 
abolished.  The  offence  of  larceny  is  not  punishable  under  this  act,  unless  committed  in 
a  place  under  tiie  sole  and  exclusive  jurisdiction  of  the  United  States;  and,  to  bring  the 
case  within  the  statute,  there  must  be  an  averment  of  such  sole  and  exclusive  jurisdiction 
in  the  indictment.     U.  S.  v.  Davis,  5  Mason''s  C.  C.  R.  356. 

Wiiere  a  larceny  is  committed  in  a  place  not  under  the  sole  and  excliisiva.jurisdiction 
of  the  United  Stales,  it  may  yet  be  punishable  under  tlic  third  section  of  the  act  of  1825, 
ch.  276.     Ibid. 

Offences  are  punishable  under  that  section  according  to  the  State  laws  where  they  are 
committed,  under  circumstances  or  in  places  in  which,  before  that  act,  no  court  of  the 
United  States  had  authority  to  punish  them.     Ibid. 

*  The  luggage  of  passengers,  by  steamboat,  comes  under  the  description  of"  goods," 
witiiin  this  provision.  Reg.  v.  Wright,  7  Car.  S^-  P.  159. 

t  Theft,  on  navigable  rivers,  to  the  value  of  40s.  was  felony,  without  benefit  of 
clergy,  by  24  Geo.  II.  c.  45.  now  repealed,  by  7  iSf  8  Geo.  IV.  c.  27. 

t  It  is  immaterial  that  the  intention  with  which  he  receives  them  is  for  the  purpose 
of  concealment,  and  not  for  profit.  R.  v.  Richardson,  6  Car.  Sf  P.  335.  Rex  v.  Davis, 
lb.  177. 


HISTORIA  PLACITORUM  CORONA.  516' 

Larceny  committed  on  board  of  an  American  ship  in  an  enclosed  dock  in  a  foreign 
port,  is  not  punishable  under  the  statute  of  30th  April,  1790,  ch.  9,  sect.  16.  U.  S.  v. 
Hamilton,  1  Mijson''s  C.  C.  Rep.  152. 

The  feloniously  stealing  goods  which  had  been  cast  away  from  a  vessel  wrecked  at 
Rockaway  Beach,  the  goods  when  so  taken  having  been  above  high-water  mark  in  the 
county  oi  Queen's,  in  the  state  of  New  York,  was  an  offence  under  the  9tii  section  of  the 
act  entitled,  '•  An  act  more  effectually  to  provide  for  the  punisiiment  of  certain  crimes 
against  the  United  Slates,"  passed  3d  March,  1825.     U.  S.  v.  Coombs,  12  Pelers^s  R.  72. 

Money,  and  bank-notes,  and  coin,  are  personal  goods  within  the  meaning  of  this  sec- 
tion respecting  stealing  and  purloining  on  the  high  seas.  U.  S.  v.  Mouton,  5  Mason's 
Rep.  537 ;  see  U.  S.  v.  Davis,  5  Masojt's  R.  356. 

The  taking,  by  the  defendant,  of  an  article  delivered  to  him  as  a  servant  to  remove 
from  one  room  to  another,  and  converting  the  same  to  his  own  use,  is  larceny,  and  not 
embezzlement.     U.  S.  v.  Clew,  4  Wash.  C.  C.  R.  700.     Lewer  v.  Com.  15  S.  ^  R.  93. 

If  the  finder  of  bank-notes  convert  them  to  his  own  use,  with  the  full  knowledge  of 
the  owner,  it  is  not  larceny,  but  a  civil  injury.    Porter  v.  Tennessee,  Mart.  S(  Yerg.  226. 

A  bona  fide  finder  of  an  article  lost,  as  a  trunk  containing  goods  lost  from  a  stage- 
coach, and  found  on  the  highway,  is  not  guilty  of  larceny  by  any  subsequent  act  in 
secreting  or  appropriating  to  his  own  use  the  article  found.  People  v.  Anderson,  14 
Johns..  294,    Com.  v.  Snelling,  4  Binn.  R.  379. 

The  finder  of  lost  goods,  is  bound  by  the  laws  of  Vermont  to  advertise  them.  If  he 
conceal  or  convert  them,  he  is  chargeable  with  larceny.     State  v.  Jenkins,  2  Tyler,  379. 

Larceny  cannot  be  committed  of  goods  and  chattels  found  in  the  highway  where  there 
are  no  marks  by  which  the  owner  can  be  ascertained.     Tyler  v.  People,  Breese,  227. 

One  taking  staves,  though  under  a  contract  with  the  owner  to  have  half  for  making 
them,  may  be  guilty  of  larceny.     State  v.  Jones,  2  Dev.  Sf  Bat.  544. 

If  a  person  finds  personal  property  on  the  highway,  knowing,  or  having  the  means  of 
knowing  the  owner,  and  does  not  restore  it,  but  converts  it  to  his  own  use,  such  conver- 
sion will  constitute  larceny.    State  v.  Wetson,  9  Conn.  Rep.  527. 

Obtaining  goods  by  a  fraudulent  purpose,  the  vender  delivering  them  with  an  inten- 
tion to  part  with  the  property  in  the  goods,  in  no  case  constitutes  a  larceny.  Mowrey  v. 
Walsh,  8  Cow.  238. 

False  pretences  artd  artifices  in  obtaining  another's  property  by  one  entertaining  a 
felonious  design,  will  constitute  larceny,  provided  it  does  not  appear  that  a  temporary 
trust  or  possession  was  extended  to  the  party.     Wilson  v.  State,  1  Port.  118. 

A  larceny  may  be  committed  of  goods  obtained  from  the  ownej:  by  delivery  if  ob- 
tained, onimo  furandi.     State  v.  Gorman,  2  iV.  ^-  M.  90. 

It  is  constructive  larceny  in  Pennsylvania  to  induce  one  by  fraudulent  means  to  part 
with  the  property  in  goods;  this  description  is  confined  to  the  possession  of  goods. 
Lewer  v.  Commonwealth,  \5  S.  S^  R.  93. 

Under  an  indictment  for  stealing  a  horse,  the  jury  were  charged  that  the  question 
was,  tiie  intention  to  steal  at  the  time  of  the  taking:  an  indictment  as  for  obtaining 
goods,  &.C.,  under  false  pretences  would  not  lie,  it  seems,  unless  there  were  a  consent  of 
the  owner  to  the  taking.     State  v.  Smith,  2  Tyler,  272.     Id.  352. 

Larceny  may  be  committed  on  one's  own  property,  where  the  intent  is  to  charge  an- 
other with  the  value  of  it.  Palmer  v.  People,  10  Wend.  165.  The  People  v.  Wiley, 
3  Hill,  R.  194. 

Upon  an  indictment  in  Virginia  for  stealing  a  free  mulatto  boy,  knowing  at  tlie  time 
that  he  was  free,  it  was  held,  that  the  offence  was  complete  under  the  statute,  by  kid- 
napping without  the  actual  sale:  Held  also,  that  the  stealing  a  free  negro  with  felonious 
intent  to  appropriate  him,  was  criminal,  whether  the  person  so  stealing  him  knew  him  to 
be  free  or  not,  and  that  an  averment  of  knowledge  in  the  indictment  need  not  be  proved, 
but  might  be  regarded  as  surplusage:  Held  also,  that  the  consent  of  the  boy,  if  given, 
he  being  only  of  eight  years  of  age,  would  not  excuse  the  offence.  DavenporVs  case, 
1  Leigh,  558. 

A  servant  employed  to  drive  the  wagon  of  a  common  carrier  cannot  claim  the  exemp. 
tion  of  his  master  in  case  of  a  fraudulent  abstraction  of  goods  entrusted  to  his  care,  which 
would  not  amount  to  technical  larceny  in  the  master.  Commonwealth  v.  Brown,  4  Mass. 580. 

If  a  hostler  in  charge  of  a  horse  takes  him  away,  animo  furandi,  it  is  a  felony;  if  he 
takes  him  only  to  use  him,  and  then  returns  him  again,  it  is  a  breach  of  trust.  State  v. 
Self,  1  Boy,  212. 

The  act  of  South  Carolina  of  March  5th,  1737,  makes  it  larceny  I9  steal  a  bank-note, 
if  it  be  proved  to  be  a  genuine  bank-note.  State  v.  Tillery,  1  N.  S^M.^;  State  v. 
Casados,  ib,  91. 


SIG"*  HISTORIA  PLACITORUM  CORONA. 

The  statute  of  Alabama,  making  "  promissory  notes"  the  subject  of  larceny,  does  not 
include  "bank-notes."  An  indictment,  alleging  the  larceny  of  "  bills  of  credit,"  is  bad, 
the  State  having  no  authority  to  issue  sucii  bills.     Culp  v.  State,  1  Porter,  R.  33. 

An  indictment  will  not  lie  for  larceny  of  "bills  of  credit"  on  the  United  States'  Bank 
of  amount  less  than  such  bank  is  authorized  by  its  charter  to  issue.     Jb.  33. 

Invalid  bonds,  notes,  &c.  are  not  the  subject  of  larceny.     Wilson  v.  Stale,  Jb.  118. 

Money  and  bank-notes  and  coin  are  ■  personal  goods  within  the  meaning  of  the 
16th  section  of  the  Crimes  Act  of  1790,  c.  9,  respecting  stealing  and  purloining  on  the 
high  seas.  1  Peters's  U.  S.  Stat,  at  Large,  114.    U,  States  v.  Moulton,  5  Mason,  537. 

"Personal  goods,"  under  the  act  of  Congress  of  1790,  c.  9,  do  not  include  choses 
in  action,  the  latter  not  being  the  subject  of  larceny  at  common  law.  U.  States  v. 
Davis,  5  Mason,  356. 

At  common  law  a  chose  in  action  is  not  the  subject  of  larceny.  Culj)  v.  State, 
1  Port.  33. 

Doves,  being  animals /erce  naturee,  cannot  be  subjects  of  larceny,  unless  when  irr  the 
custody  of  the  owner,  as  in  a  dove-house.  Commonwealth  v.  Chace,  9  Pick.  15.  So  of 
bees.     Wallis  v.  Mease,  3  Binn.  R.  546. 

A  martin  in  a  trap  in  the  woods  cannot  be  a  subject  of  larceny  while  it  remains  in  the 
trap.     Norton  v.  Ladd,  5  N.  Hamp.  R.  203. 

A  mere  letter  is  not  a  subject  of  larceny,  and  taking  it  away  is  not  a  criminal  offence. 
Payne  v.  People,  6  Johns.  103. 

An  indictment  lies  for  taking  skins  from  an  Indian  camp  in  the  absence  of  the  In- 
dians.    Pennsylvania  v.  Becomh,  Addis.  386. 

Under  the  act  of  South  Carolina  of  1826,  corn  growing  in  a  field  is  a  subject  of  lar- 
ceny although  not  previously  severed  from  the  soil.     State  v.  Stephenson,  2  Bailey,  334. 

Massachusetts. — For  the  statutes,  see  Mass.  Rev.  Stat.  ch.  126.  §§  11. 12. 13. 14. 15. 16. 
17.  18.  19.  Ed.  1836.  Sapp.  to  Rev  Stat.  c.  31.  p.  112.  ed.  1839.  Where  several  pack- 
ages of  goods  were  delivered  to  a  common  carrier,  to  be  transported  in  a  body,  an  ab-. 
straction  of  one  entire  package,  constitutes  a  taking  in  the  sense  of  larceny.  Com.  v. 
Brown,  4  Mass.  R.580.  Dame  v.  Baldwin,  8  Jd.  518.  So  where  a  miller  having  received 
barilla  to  grind,  fraudulently  retained  part  of  it,  returning  a  mi.xture  of  barilla  and  plas- 
ter of  Paris,  it  was  held  to  be  larceny.  Com.  v.  James,  1  Pick.  R.  375,  So  articles  of 
clothing  on  a  dead  body,  cast  ashore  firom  a  wrecked  vessel,  are  the  subjects  of  larceny. 
Morison  v.  Sayward,  13  Jd.  402. 

A  person  stealing  goods  in  one  State  and  bringing  them  into  another,  may  be  indicted 
in  the  latter  for  the  larceny.  Com.  v.  Culling,  1  Mass.  R.  116.  Com.  v.  Andrews,  2  Jd. 
14.  So  also  in  JV.  Y.  see  post.  So  also  in  Connecticut,  Rex  v.  Peat,  Root's  R.  69.  The 
State  v., Ellis,  3  Conn.  R.  185.  So  in  Vermont,  The  State  v.  Bartlett,  11  Ver7n,  R.  650. 
So  in  Ohio,  The  State  v.  Hamilton,  11  Ohio  R.  351.  Vide  U.  S.  v.  Davis,  5  Mason,  256.. 
Sed  aliter  in  N.  C.  The  State  v.  Brown,  1  Hayes,  160.  See  also  Siminons  v.  Co7n.  5  Binn. 
R.  617,  where  the  subject  is  much  discussed.  The  State  v.  Knight,  1  Tdyl.  R.  65.  The 
People  v.  Gardner,  2  Johns.  R.  477.  The  People  v.  Schenk,  Id.  479.  This  question  is 
still  open  to  much  difficulty. ,  In  some  States  it  has  been  settled  by  legislation.  See  post, 
p.  516". 

So  also,  may  the  receiver  of  such  stolen  goods,  be  indicted  in  the  latter  State  for  re- 
ceiving them.  And  one  aiding  and  abetting  in  a  larceny  in  one  county,  and  afterwards 
concerned  in  the  possession  and  disposal  of  the  stolen  property,  in  another  county,  though 
the  goods  were  removed  to  the  latter  county,  without  his  agency  or  consent,  may  be 
convicted  of  larceny  in  this  latter  county.     Com.  v.  Dewitt,  10  Mass.  R.  154. 

The  offence  of  breaking  and  entering  ''a  house  not  occupied  as  a  dwelling  house,"  in 
the  night  time,  and  stealing  therein  property  of  less  value  than  $100,  is  only  a  simple 
larceny,  and  therefore  to  be  punished  with  a  niaxinmm  of  one  year's  imprisonment  in 
the  State  prison.  Wilde  v.  The  Com.  2  Mete.  408.  So  of  .stealing  in  a  dwelling  house, 
shop,  &c.  in  the  night  time:  though  by  ihc  Rev.  Slat,  the  same  offence,  if  committed  in 
the  day  time,  is  made  an  nggraviilcd  larceny.  Com.  \.  Tuck,  20  Pick.  R.  356.  Hopkins 
V.  Com.  3  Mete.  460.  Divoe  v.  Com.  Jd.  316.  Evans  v.  Com.  3  Id.  453.  An  indictment 
for  stealing  in  a  dwelling  house,  shop,  S(c.  in  the  day  time,  property  of  less  value  than 
$100,  must  contain  the  averment  of  day  lime,  or  it  will  only  be  good  as  an  indictment  for 
a  simple  larceny.  Haggett  v.  Com.  3  Mete.  357.  Hopkins  v.  Com.  Id.  460.* 

*  It  has  been  held  in  some  cases,  that  when  the  thing  stolen  is  not  there  in  the  usual 
course,  and  is  not  such  as  is  ordinarily  kept  there,  stealing  it,  is  not  larceny, "  in  a  dwelling 


HISTORIA  PLACITORUM  CORONA.  516" 

In  an  indictment  for  hrccny,  the  articles  alleged  to  be  stolen,  must  be  averred  to  be 
*'  of  the  goods  and  chattels,"  of  the  right  owner,  if  known;  or  of  the  goods  and  chattels 
of  some  person  unknown.  Corn.  v.  Morse,  14  Mass.  R.  217,  218.  Com,  v.  Manley,  12 
Pick.  if.  173, 

On  an  indictment  for  larceny,  if  value  is  alleged  of  part  of  the  articles  stolen,  and  none 
of  the  remainder,  though  charged  to  consist  of  coin,  jiidsrment  will  be  arrested  as  to  that 
part  to  which  no  value  is  ascribed.  Com.  v.  Smith,  1  Mass.  R.  245. 

A  count  in  an  indictment,  charging  that  t(ie  defendant  broke  and  entered  a  shop,  with 
intent  to  commit  a  larceny,  and  did  then  and  there  commit  a  larceny,  is  not  bad  for  du- 
plicity. Com.  V.  Tuck,  20  Fick.  R.  356. 

The  same,  of  a  charge  of  breaking  and  entering  a  dwelling-house,  and  committing  a 
larceny.  Com.  v.  Hope,  22  Pick.  R.  1. 

An  indictment  for  larceny,  charging  the  goods  stolen  to  be  the  property  of  yl.  is  not 
supported  by  evidence  that  they  were  the  property  of  ^.  Sf  B.  who  were  partners.  Com. 
V.  Trimmer,  1  Muss.  jR.  476. 

On  a  charge  of  shop  breaking  and  larceny,  possession  of  part  of  the  stolen  goods  is 
prima  facie  evidence,  both  of  the  larceny  of  the  whole  property  stolen,  and  of  the  break- 
ing and  entering.  Com.  v.  Millard,  1  Mass.  R.  6. 

The  word  "  fo4^i7Za"  is  good  in  an  indictment,  as  a. denomination  of  a  subject  of  lar- 
ceny. Com.  v.  Jones,  1  Pick.  R.  375. 

Under  the  siat.  of  1784,  c.  66.  §  1.  providing  against  the  stealing  of  "any  note  or  cer- 
tificate of  any  bank,  or  any  public  office,  securing  the  payment  of  money  to  any  person, 
or  certifying  that  the  same  is  due,"  an  indictment  was  held  sufficient  which  charged  the 
defendant  with  stealing  a  "  bank  note"  of  a  certain  value,  without  a  more  particular  de- 
scription of  the  note.  Com.  v.  Richards,  1  Mass.  R.  337. 

An  indictment  under  the  same  siat.  c.  66.  §  8.  for  breaking  a  "store"  is  not  sufficient, 
although  the  words  of  the  stat.  are,  "  warehouse,  shop,  or  other  building  whatsoever," 
unless  it  aver  that  the  store  is  a  building.  Com.  v.  M'Monagle,  1  Mass.R.  517.  Sed  oliler, 
under  stat,  1804.  c.  143.  §  6.  which  contains  the  word  store.  Com.  v.  Lindsey,  10  Mass. 
if,  153. 

In  an  indictment  for  breaking  and  entering  an  office  in  the  night  time,  under  the  last 
mentioned  stnt.  c.  143.  §  4,  it  is  not  necessary  to  aver  that  the  office  is  "  not  adjoining 
to,  or  occupied  with  a  dwelling-house."  Devoe  v.  Com.  3  Mete,  R.  316.  Evans  v.  Com. 
Id,  453.  fhillips  v.  Cmi.  Id.  588,    Sed  vide  also  Com.  v.  Tack,  20  fick.  R.  356. 

Stealing  in  the  night  time,  in  any  dwelling-house,  &c.,  was  not  provided  for  in  the 
Rev,  Statutes.  (See  Com.  v.  Tuck,  cit.  sup.  and  Hopkins  v.  Com.  3  Mete.  R.  460.)  but 
this  omission  was  supplied  by  the  act  of  Feb,  18,  1843.  See  Tally  v.  Com.  4  Mete. 
R.  357. 

New  York.— The  statutes  of  New  York  will  be  found  in  2  Rev.  Stat.  679.  §^  G3,  64, 
65.  2  Id.  690,  §§  1,  66,  67,  68,  69,  70. 

When  the  personal  pro))erty  of  one  is  through  inadvertence  left  in  the  possession  of 
another,  and  the  latter  animo furandi  conceals  it,  he  is  guilty  of  larceny;  knowing  it  to 
be  the  property  of  another,  his  possession  will  not  protect  Jiim  from  the  cliarge  of  felony. 
The  People  v.  McGarren,  17  Wend.  R.  460.      The  People  v.  Cogdcll,  1  Hill  R.  94. 

To  constitute  larceny  tiie  possession  of  the  property  must  be  acquired  animo  furandi. 
The  People  v.  Anderson,  14  Johns.  R,  294. 

A  mere  intention  existing  afterward  to  convert  the  property,  will  not  constitute  the 
offence  of  larceny.  Id. 

One  who  obtains  the  bailment  of  goods  fraudulently,  intending  to  deprive  the  owner  of 
his  property,  may  be  convicted  of  larceny  under  an  indictment  alleging  that  he  felo- 


house,"  &c.,  as  linen  left  in  a  shop  to  be  sent  to  a  seamstress;  Anony.  8  Mod.  165;  or  to 
a  laundress.  2  EasVs  P.  C.  642  ;  or  a  watch  left  at  a  watchmaker's  shop  to  be  repaired; 
Stone's  case,  I  Leach,  C.  C.  334  ;  2  EasVs  P.  C.  643.  &  C;  or  a  coachman's  coat  hung 
up  in  a  stable,  that  not  being  the  usual  place  of  keeping  it;  Sea's  case,  1  Leach,  C.  C.  304; 
2  East,  I'.  C.  643.  .S.  C ;  or  uncurrent  money  on  board  of  a  ship  in  port;  Grimes's  case, 
2  East's  P.  C.  647;  Foster,  78,  79;  but  such  a  construction  seems  to  be  inconsistent 
with  the  plain  meaning  of  the  law,  and  the  reason  of  the  exception  is  not  very  apparent. 
Where  the  thing  stolen  was  left  in  a  house  by  mistake,  and  was  such  as  miglit  in  the 
ordinary  course,  be  in  the  house,  the  stealing  of  it  from  the  house  was  held  to  be  larceny 
in  a  dwelling  house,  within  the  construction  of  the  statute  against  such-larceny.  Car- 
roll's case,  Mood.  Cus.  89;  Mass.  Com.  Rep.  25.(«) 


516°  HISTORIA  PLACITORUM  CORONA. 

niously  stole,  took,  and   carried  away  the  property,  &c.     Cary  v.  Hefterling,  1  HilVs 
iJ.  311. 

In  tiie  prosecution  of  an  indictment  for  a  larceny,  if  the  crime  be  established  in  respect 
to  a  single  article,  though  tlie  indictment  describe  several,  the  defendant  may  be  con- 
victed.  3  HiWs  R.  194. 

A  trial  and  acquittal  for  robbery  is  a  bar  to  an  indictment  for  larceny  where  the 
property  alleged  to  have  been  taken  is  the  same.  The  People  v.  McGowan,  17  Wend. 
R.  386. 

The  rule  in  such  case  is,  that  if  the  former  indictment  might  have  been  sustained  by 
proof  which  would  be  sufficient  to  sustain  the  second  indictment,  n.  prima  facie  case  is 
made  out  for  the  prisoner  by  the  production  of  the  record  of  acquittal,  and  without  fur- 
ther  proof  on  the  part  of  the  prosecution,  he  is  entitled  to  be  discharged.  Id. 

On  the  trial  of  an  indictment  for  stealing  foreign  bank  bills,  it  is  incumbent  on  the 
prosecutor  to  produce  at  least  prima  facie  evidence  of  the  existence  of  such  banks  and  of 
the  genuineness  of  the  bills.     The  People  v.  Caryl,  12  Wend.  R.  SAl.  ■=^ 

As  to  the  bills  themselves,  it  is  not  necessary  to  prove  by  positive  testimony  that  the', 
names  subscribed  to  them  are  in  the  handwriting  of  the  officers  of  such^banks ;  but  it^ 
should  at  least  be  proved  by  a  witness  familiar  with  the  bills,  that  he  believed  them  to  be 
genuine.  M.  ^ 

By  the  Rev.  Stat.  2  Rev.  St.  698,  §  4,  it  is  enacted  that  every  person  who  shall  felo- 
niously  steal  the  property  of  another  in  any  other  state  or  county,  and  shall  bring  the 
same  into  this  state,  may  be  convicted  and  punished  in  the  same  manner  as  if  such  lar- 
ceny  had  been  committed  in  this  State;  and  in  every  such  case  such  larceny  may  be 
charged  to  have  been  committed  in  any  town  or  city  into  or  through  which  such  stolen 
property  shall  have  been  brought.  See  The  People  v.  Burke,  1 1  Wend.  R.  129.  The 
People  V.'  Gardner,  2  Johns.  R.  477,  and  the  remarks  of  the  Ch.  Just,  on  this  latter  case 
in  The  People  v.  Burke. 

The  principle  established  by  the  N.  Y.  Stat,  was  applied  without  the  intervention  of  a 
statute  in  Com.  v.  Culling,!  Mass.  R.  116,  and  Com.  \.  Andrews, 2  Id.l'i.  See  this  note, 
p.  516". 

The  true  construction  of  the  Stat.  Sess.  42.  ch.  246,  §  4.  providing  that  every  person 
"wlio  shall  be  a  second  time  convicted  of  petit  larceny  shall  be  adjudged  to  imprisonment 
in  the  State  prison,  is  that  the  second  offence  must  be  committed  after  a  conviction  for 
the  first,  in  order  to  warrant  an  enhanced  penalty.  It  is  not  enough  that  there  be  two 
successive  petit  larcenies  by  the  same  person  which  are  severally  and  successively  prose- 
cuted to  conviction ;  though  the  second  indictment  charge  the  first  conviction  as  a  part 
of  the  crime.     The  People  v.  Butler,  3  Cow.  R.  347. 

An  indictment  for  petit  larceny,  charging  it  as  a  second  offence,  is  good,  though  in 
respect  to  the  first  offence,  it  merely  alleges  that  the  defendant  was  convicted,  &c.  with- 
out averring  in  terms  a  judgment  or  sentence,  and  though  it  does  not  specify  the  pro|)erly 
to  which  the  first  offence  is  related,  or  the  person  from  whom  it  was  stolen:  aliter,  if  the 
indictment  omits  to  aver  that  the  defendant  had  been  pardoned,  or  otherwise  discharged 
from  the  first  conviction,  before  the  commission  of  the  second  offence.  Stevens  v.  The 
People,  1  Hill's  R.  261. 

New  .Tersev. — For  the  statute,  see  Elm.  Dig.  107,  108. 

If  one  takes  the  goods  of  another  out  of  the  place  where  they  were  put,  though  he  is 
detected  before  they  are  actually  carried  away,  the  larceny  is  complete.  •  The  State  V; 
Wilson,  Coze  R.  439. 

A  prisoner  cannot  be  tried  by  two  justices  of  the  peace  on  a  charge  for  larceny, 
"without  an  accusation  in  writing."  See  Elm.  Dig.  107,  §  32.  See  Statutes  of  the  Slate 
of  N.  J.  revised  in  1847,  tit.  VIII.  Crimes  and  Punishments,/).  256. 

Pennsylvania. — The  SUdutcs  of  Pennsylvania  wiU  be  found  in  the  Act  of  April  5, 
1790,  sect.  3.  2  Smith's  L.  .^Sl.  Stroud's  Purdon,  956.  6th  ed.  Id.  1051.  7th  ed.  sects. 
4,  5.  9.  Act  of  21  March,  IBOG.  4  Smith's  L.  334.  Stroud's  Purd.  958,  sects  I,  2.  Act 
of  30  January,  1810.  5  Smith's  L.  81.  Stroud's  Purd.  958.  6th  ed.  1054.  7th  ed.  as  to 
bank  notes  amended  by  Act  of  10  March,  1817, sect.  1.  6  Smith's  Zi.412.  Stroud's  Purd, 
959,  6th  ed.  1055,  7ih  ed.  The  Act  of  29  April,  1844,  sect.  2.  Pamph.  L.  513,  enacts 
that  in  all  cases  where  taxes  are  assessed  and  paid  on  dogs  in  Philadelphia  and  Alle- 
gheny counUcs,  the  said  dogs  shall  be  considered  as  personal  property. 

If  the  owner.of  goods  part  with  the  possession,  for  a  particular  purpose,  and  the  person 
wlio  receives  the  possession  avowedly  for   that  purpose,  has  a  fraudulent  intention  to 


HISTORIA  PLACITORUM  CORONiE.  516? 

make  use  of  the  possession,  as  the  means  of  converting  the  goods  to  his  own  use,  and 
does  so  convert  them,  it  is  larceny.  But  if  the  owner  intends  to  part  with  the  property, 
and  delivers  possession  absolutely,  and  the  purchaser  receives  the  goods  for  the  purpose 
of  doing  with  them  what  he  please,  it  is  not  larceny,  although  fraudulent  means  may 
have  been  used  to  induce  him  to  part  with  them.     Lewer  v.  Com.  15  S.  ^  R.  93.  97. 

Taking  is  a  material  part  of  larceny,  but  it  may  be  presumed  from  the  possession  of 
the  property.    I'enn  v.  Myers,  Add.  R.  320.    Id.  v.  Becomb,  id.  386. 

At  common  law,  larceny  cannot  be  committed  of  a  dog.  Nor  does  the  4th  sect,  of  the 
act  of  April,  1790,  extend  the  crime  beyond  its  ancient  limits.  Findley  v.  Bean, 
8S.  Sf  R.51L     But  see  the  local  act  of  April  29,  1844,  §  2,  sup. 

Under  the  act  of  April  5th,  1790,  an  indictment  for  stealing  bank  notes  must  lay 
them  as  promissory  notes  for  the  payment  of  money,  and  therefore  an  indictment  for 
stealing  a  "ten  dollar  note  of  the  President,  Directors  and  Company  of  the  Bank  of  the 
United  States,"  is  bad.    Com.  v.  Boyer,  1  Binn.  R.  201, 

Under  the  Act  of  1810,  an  indictment  for  stealing  bank  notes  must  aver  in  general 
that  they  were  issued  by  a  bank  incorporated  by  law,  or  name  the  bank,  and  aver  tliat  it 
was  incorporated;  or  show  in  some  sufficient  manner  that  the  notes  were  lawful,  and 
therefore  an  indictment  charging  the  defendant  with  stealing  bank  notes  generally, 
describing  them  as  "  promissory  notes  for  the  payment  of  money,"  is  bad,  Spangler  v. 
Com.  3  Binn.  R.  533. 

Under  the  act  of  Assembly  of  1817,  however,  it  is  not  necessary  to  state  that  the 
bank  was  duly  incorporated.     McLaushlin  v.  Com.  4.  Raw.  R.  464. 

An  indictment  for  stealing  three  promissory  notes  for  the  payment  of  money,  com- 
monly called  bank-notes,  "  on  the  Bank  of  the  United  States"  was  held  to  be  good. 
Id.  464. 

An  indictment  for  stealing  "a  bank-note  of  the  Bank  of  Baltimore,"  without  describ- 
ing it  a-s  a  promissory  note  for  the  payment  of  money,  was  held  bad  under  the  act  of 
1790.     Com.  v.  McDowell,  1  Browne,  R.  360. 

County  orders  are  not  bills  of  exchange,  and  are  not  enumerated  in  the  act  of 
5ih  April,  1790.  When  a  statute  creates  a  felony,  to  authorize  a  judgtoent  on  con- 
viction, the  indictment  must  conclude  contra  formam  statuti.  Warner  v.  Com.  1  Barr. 
R.  154. 

ViRGiNTA.— For  the  statutes  see  Rev.  Code,  c,  171,  §.  6;  Supp.  to  R.  C.  295.  308; 
Rev.  Code,  ch.  152,  §.  1;  Rev.  Code,  ch.  154,  §.  8:  Rev.  Code,ch.  160,  §.  7. 

A  prosecution  may  be  maintained  under  the  Virginia  act  of  1806  for  stealing  a 
bank-note  of  any  other  State.     Cummings  v.  Commonwealth,  2  Virg.  Cos.  128. 

The  Virginia  act  of  1806,  which  made  it  felony  to  steal  any  "  bank-note,"  embraced 
any  available  chose  in  action  bearing  that  name;  nor  is  the  meaning  of  the  term 
restricted  by  the  8th  section  of  the  act  of  1819.     Pomeroy  v.  Commonwealth,  lb.  ^42. 

In  the  construction  of  this  act  of  1806  it  has  been  held,  that  a  general  description  of 
a  bank-note,  as  one  for  a  specified  sum  and  current  within  the  United  States,  without 
mentioning  the  name  of  the  bank  by  ^Evhich  it  was  issued,  is  sufficient  in  an  indictment 
for  the  larceny  thereof.     Id.  128. 

On  a  prosecution  for  larceny  of  bank-notes  it  is  not  indispensably  necessary  to  pro- 
duce them  on  the  trial.     Moore  v.  The  Com.  2  Leigh,  R.liil. 

No  other  possession  of  bank-notes,  &c  ,  mentioned  in  this  act,  is  necessary  to  render 
them  the  subject  of  larceny  than  is  required  in  the  case  of  goods :  and  if  the  ex- 
pression, "  from  the  possession"  means  an  actual  possession,  it  can  only  apply  to  taking 
by  robbery.    Angel  v.  The  Com.  2  Virg.^  CaseSy  228. 


I 


617  HISTORIA  PLACITORUM  CORONA. 


CHAPTER  XLIV. 

CONCERNING    THE    DIVERSITIES    OF    GRAND   LANCINIES    AMONG   THEM- 
SELVES  IN   RELATION   TO    CLERGY.[1] 

Altho  the  punishment  of  all  grand  larciny  by  the  law  is  death, («) 
yet  ill  relation  to  clergy,  which  is  a  kind  of  relaxation  of  the  severity 
of  the  judgment  of  the  law,  there  is  difference  made  by  acts  of  par- 
liament between  some  larcinies  and  others. 

By  the  antient  privilege  of  the  clergy,  and  by  the  confirmation  and 

(a)  In  aniient  times  it  was  in  some  eases  punislied  wiih  the  loss  of  a  thumb,  in  others 
wiih  pillory,  and  the  loss  of  an  ear.     Corone  434.  Britt.  24.  b. 


[1]  This  has  now  become  a  title  of  curiosity  only,  the  Stat.  7  &  8  Geo.  IV.  c.  28, 
having  enacted  by  Sect.  6,  that  benefit  of  clergy  with  respect  to  persons  conticled  of 
felony  shall  be  abolished  :  and  by  Sect.  7,  tliat  no  person  convicted  of  felony  shall  suffer 
deatl),  unless  for  some  felony  which  was  excluded  trom  the  benefit  of  clerg-y  before  or  on 
the  first  day  of  the  then  session  of  Parliament,  {Feb.  8,  1827,)  or  which  should  be  made 
punishable  with  death  by  some  statute  passed  after  that  day.  ( 

This  benefit  of  clergy  constituted  in  former  times  so  remarkable  a  feature  in  crimi- 
nal law,  and  a  general  acquaintance  with  its  nature  is  still  so  important  for  the  illus- 
tration of  the  books,  that  it  may  be  desirable  to  subjoin  farther  notice  on  the  subject. 
It  originally  consisted  in  the  privilege  allowed  to  a  clerk  in  orders,  when  prosecuted  in 
the-  temporal  court,  of  being  discharged  from  thence  and  handed  over  lo  the  court 
Christian,  in  order  to  make  canonical  purgation,  that  is,  to  clear  himself  on  his  own 
oath,  and  that  of  other  persons  as  his  compurgators,  {vide  jRectics's  Hist.  Eng.  L.  vol.  2, 
pp.  14, 134 ;  25  Edw.  III.  st.  3,  4,)  a  privilege  founded,  as  it  is  said,  upon  the  text  of 
Scripture,  "Touch  not  mine  anointed,  and  do  my  prophets  no  harm."  In  England 
this  was  extended  by  degrees  to  all  who  could  read,  and  so  were  capable  of  becoming 
clerks.  {Reeves  nbi  supra  et  vol.  4,  p.  156.)  But  by  4  Hen.  VII.  c.  13,  it  was  provided, 
that  laymen  allowed  their  clergy  should  be  burned  in  ihe'hand,  and  should  claim  it  only 
once;  and  as  to  the  clergy, it  became  the  practice  in  cases  of  heinous  and  notorious 
guilt,  to  hand  them  over  to  the  ordinary,  absque  purgntione  facicnda,  the  effect  of 
wliich  was,  that  they  were  imprisoned  for  life.  4  Bl.  Com.  369.  Afierwards,  by 
18  Eliz.c.  7,  the  delivering  over  to  the  ordinary  was  abolished  altogether,  but  imprison- 
ment was  authorized  in  addition  to  burning  in  the  hand.  By  5  Ann.  c.  6,  the  benefit  of 
clergy  was  allowed  to  those  entitled  to  ask  it,  without  reference  lo  their  ability  to  read. 
By  4  Geo.  I.  c.  11;  6  Geo.  I.  c.  23,  and  19  Geo.  III.  c.  74,  the  punishment  of  trans- 
portation was  authorized  in  certain  cases,  in  lieu  of  burning  in  the  Jiand;  and  by  the 
act  last  mentioned  the  court  might  impose,  instead  of  burning  in  the  hand,  a  pecuniary' 
fine,  or  (except  in  manslaughter)  order  the  offender  to  be  whipped.  As  to  the  naiure  of 
the  offences  to  which  the  benefit  of  clergy  applied,  it  had  no  application  except  in  capital 
felonies,  and  from  the  more  atrocious  of  these  it  had  been  taken  away  by  various  sta- 
tutes prior  to  its  late  abolition  by  7  &  8  Geo.  IV.  c.  28,  s.  6.  As  the  law  stood  at  the 
time  of- that  abolition,  chirks  in  order  were,  by  force  of  the  benefit  of  clergy, discharged 
in,  clergyable  felonies  without  any  corporal  punishment  whatever,  and  as  often  as  they 
ofiended,  and  the  only  penalty  being  a  forfeiture  of  their  goods;  and  the  case  was  the 
same  with  peers  and  peeresses,  (as  to  whom  see  4  &  5  Vict.  c.  22,)  but  they  could  claim 
it  only  for  the  first  ofl'cnce.  As  to  commoners  also,  they  could  have  benefit  of  clergy 
only  for  the  first  offence,  and  they  were  discharged  by  it  from  the  capital  punishment 
only,  being  subject  on  the  otlier  hand,  not  only  to  forleilure  of  goods,  but  to  burning  in 
the  hand,  whipj)ing,  fine,  irnprisoiiinent,  or  in  certain  cases  transportation  in  lieu  of  the 
capital  sentence.    4  Bl.  Corn.  p.  371 ;  4  Sleph,  Com.  436. 


HISTORIA  PLACITORUM  CORONA..  517 

special  concession  of  the  statute  of  25  E.  3.  cap.  4,  the  benefit  of 
clergy  was  to  be  allowed  in  all  treasons  and  felonies  touching  other 
persons  than  the  king  himself  and  his  royal  nnajesty. 

Therefore  as  well  in  grand  larciny,  as  in  other  felonies,  clergy  is 
to  be  allowd,  where  it  is  not  taken  away  by  some  subsequent  act  of 
parliament. 

And  in  all  thdse  cases,  wherein  it  is  so  taken  away,  the  indict- 
ment of  such  larciny  or  other  felony  must  bring  the  case  within 
the  particular  provision  of  those  statutes,  which  in  such  cases  takes 
away  clergy,  otherwise  it  is  to  be  allowd,  tho  upon  the  evidence  it 
may  fall  out,  that  the  truth  of  the  fact  appears  to  be  such,  as  is 
within  the  special  provision  of  those 'statutes,  that  so  take  away 
clergy. 

The  statutes  therefore,  that  take  away  clergy  in  some  particular 
larcinies,  are  these  that  follow: 

I.  By  the  statute  of  23  H.  8.  cap.  1.  "All  persons  found  guilty 
of  robbing  any  church  or  chapel,  or  other  holy  places,  or  of  robbing 
any  person  in  his  dwelling-house,  the  owner  or  dweller  of  the  same 
house,  his  wife,  children  or  servants  then  being  within,  and  put  in 
fear  and  dread  by  the  same,  or  for  robbing  any  person  in 
or  near  the  highway,  and  those,  that  are  found  guilty  of  [518] 
abetting,  procuring,  helping,  or  counselling  thereof,  are  ex- 
empt from  the  benefit  of  clergy,  except  such  as  are  in  the  order  of 
sub-deacon." 

But  upon  this  statute,  tho  there  must  be  a  stealing  of  goods,  there 
need  not  be  an  actual  breaking, (6)  for  the  stealing  in  the  house,  and 
putting  the  dweller,  his  wife  or  servants  in  fear,  is  robbery. 

This  statute  extended  only  to  a  conviction  by  verdict  or  con- 
fession, but  the  statute  of  25  H.  8.  cap.  3.  extended  it  to  a  standing 
mute,  or  challenging  of  above  the  number  of  twenty,  or  not  directly 
answering,  and  also  in  case  of  an  arraignment  of  a  prisoner  for  a 
felony  by  bringing  the  goods  he  stole  into  one  county,  where  he 
had  first  stolen  the  goods  in  a  foreign  county,  in  one  of  those  man^ 
ners  mentiond  in  the  statute  of  23  H.  S.  it  gave  power  to  the  jus- 
tices, upon  examination  of  the  fact,  to  put  the  prisoner  from  his 
clergy,  but  herein  these  things  are  observable:  1.  It  did  not  give 
power  of  examination,  where  the  prisoner  confessed  the  felony,  but 
where  he  put  himself  upon  his  trial.  2.  These  examinations  need 
rot  be  recorded.  3.  It  did  not  extend  only  to  those  cases,  where 
the  prisoner  was  to  be  ousted  of  his  clergy  hy  force  of  the  statute 
of  23  //.  8.  and  not  to  other  cases,  where  he  was  to  be  ousted  of 
his  clergy  by  any  subsequent  statute,  and  therefore  upon  a  robbery 
in  a  dwelling-house,  where  the  owner,  liis  wife  or  servants  were 
within,  and  not  put  in  fear,  he  could  not  be  ousted  of  his  clergy  by 

(6)  In  the  case  of  robbing  a  church  there  must  be  an  actual  breaking  to  bring  it 
within  this  statute;  but  by  1  E.  6.  cap.  12.  it  is  not  necissary,  for  by  that  statute  all 
felonious  taking  of  goods  out  of  churcli  or  chapel  is  ousted  of  cleigy  in  all  cases, 
except  that  of  cliallenging  above  twenty,  which  defect  is  supplied  by  3  &  -^  W.  S^  31. 
cap.  9. 


518  HISTORTA  PLACITORUM  CORONiE. 

examination  in  a  foreign  county  upon  the  statute  of  25  H.  8.  Anders. 
Sep.  n.  158.  p.  114.  Co.  P.  C.  cap.  52.  p.  115. 

And  therefore  it  was  ruled  in  one  Calebs  case,  a  woman  broke  a 
dwelUng-house  in  Kent  in  the  day-time,  none  being  there,  and  took 
away  goods  above  the  value  of  five  shillings,  and  under  the  value 
of  ten  shillings,  and  carried  the  goods  into  Sussex,  where 
[[  519  ]  she  was  indicted  of  larciny,  and  upon  exarhination  it  ap- 
peard  she  had  broke  the  house,  and  took  the  goods  ui 
supra,  being  above  five  shillings  and  under  ten  shillings,  and  the 
jury  found  accordingly,  and  she  was  burnt  in  the  hand,  and  dis- 
charged, for  a  man  in  such  a  case  should  have  had  his  clergy  in  the 
county  of  Sussex,  because  tho  the  statute  of  39  Eliz.  cap.  15.  take 
away  clergy  in  the  proper  county,  yet  the  statute  of  25  H.  8.  as  to 
examination  and  taking  away  clergy  in  a  foreign  county  extends 
only  to  felonies  put  out  of  clergy  by  23  ZT.  8.  or  5  <§'  6  E.  6.  cap.  10. 
coram  domino  Bridgman  in  Sussex  ex  libra  suo. 

Again,  the  statutes  of  23  H.  8.  and  25  H.  8.  did  put  accessaries 
before  in  such  cases  from  the  benefit  of  their  clergy,  as  well  as  the 
principals,  but  as  to  that  they  are  repeald  by  1  E.  6.  cap.  12. 

But  by  the  statute  of  1  E.  6.  cop.  12.  tho  the  statute  of  23  H.  8. 
be  re-enacted  as  to  the  principals  in  the  cases  before  mentioned,  and 
also  in  cases  of  breaking  houses  to  the  intent  to  steal,  (any  person 
being  therein,  and  put  in  fear)  if  convict  by  verdict  or  confession,  ot 
standing  mute,  and  not  directly  answering,  yet  it  hath  this  general 
clause,  and  iii  all  other  cases  offenders  shall  have  benefit  of  their 
clergy,  and  therefore  by  this  act  these  changes  were  wrought. 

1.  In  the  cases,  where  clergy  was  excluded  by  this  act,  there  is  no 
saving  for  persons  in  holy  orders. 

2.  It  repeald  the  statute  of  25  H.  8.  cap.  3.  as  to  examination  in 
a  foreign  county,  and  for  that  reason  the  statute  of  5  «§'  6  E.  6.  cap. 
10.  was  made,  whereby  that  statute  was  revived,  and  stands  now  in 
force  in  every  article  thereof. 

3.  It  restored  clergy  to  accessaries  before  in  all  those  cases, 
wherein  they  were  ousted  of  clergy  by  23  Sf-  25  H.  8,  and  therefj[>re 
the  statute  of  4  4'  5  Ph.  Sf  M.  cap.  4.  was  made,  whereby  acces- 
saries before  in  murder,  or  robbery  in  any  dwelling-house,  or  in 
or  near  the  iiighways,  are  ousted  of  clergy  upon  conviction,  out-, 
lawry,  standing  mute,  or  challenging  above  twenty,  or  not  directly 
answering. 

So  that  the  statutes  of  23  and  25  H.  8.  stand  at  this  day  in  force 
with  this  addition,  that  persons  in  holy  orders  stand  equally 
r  5201  exempt  from  the  benefit  of  clergy  with  others  by  the  statute 
of  1  E.  6.  as  to  cases  within  that  statute. 

But  if  only  a  stranger  were  in  the  house,  and  neither  the  owner, 
his  wife,  children  or  servants,  this  gives  no  discharge  of  clergy  by  the 
statute  of  23  //  8.  and  therefore  there  was  provision  in  that  case  by 
the  ensuing  statute. 

II.  But  the  statute  of  1  E.  6.  cap.  12.  breaking  of  any  house  by- 
night  or  by  day,  any  person  being  in  the  house  or  put  in  fear,  if  it 


HISTORIA  PLACITORUM  CORONA.  520 

were  with  an  intent  to  steal,  tiio  nothing  he  stolen,  a  principal  was 
excluded  from  clergy  in  all  cases,  except  outlawry  and- challenging 
above  twenty. 

And  also  in  a  foreign  county,  yet  if  upon  examination  it  be  so 
found,  he  is  ousted  of  clergy  by  the  statute  of  5  <§•  6  E.  6.  cap.  10. 
but  the  accessary  before  or  after  is  not  ousted  of  clergy  by  this 
statute. 

Ill,  By  the  statute  of  5  4'  6  E.  6.  cap.  9.  "  If  any  person  be  found 
guilty  according  to  the  laws  of.  the  land  for  robbing  any  person  or 
persons  in  his  or  their  dweUing  houses, or  dwelling-places,  the  owner 
or  dweller,  his  wife,  children  or  servants  being  within  the  same 
house  or  place,  or  in  any  place  within  the  precincts  thereof,  such 
offender  shall  not  be  admitted  to  clergy,  whether  the  owner  or 
dweller,  his  wife  or  children,  then  or  there  being,  shall  be  waking  or 
sieeping. 

."  And  also  he,  that  robs  any  person  in  any  booth  or  tent,  in  any 
fair  or  market,  his  wife,  children,  or  servant  then  being  within  the 
booth  or  tent,  shall  be  excluded  from  clergy. 

This  statute  is  of  force,  and  of  great  and  daily  use,  and  therefore  it 
will  be  convenient  to  make  some  observations  upon  it. 

Upon  this  statute  tliese  things  are  observable: 

1.  That  it  extends  not  to  oust  clergy  in  any  case  but  upon  con- 
viction of  the  offender,  either  by  verdict  or  confession,  for  a  man 
that  confesseth  is  found  guilty  by  his  confession,  but  it  extends 
not  to  standing  mute,  challenging  above  twenty,  or  not  directly 
answering.(c) 

And  therefore  it  is  considerable,  whether,  if  a  man  be 
attaint  by  outlawry,  he  may  not  be  admitted  to  his  clergy  [521  ^ 
as  a  clerk  attaint,  which,  tho  it  avoids  not  the  attainder,  yet  . 
it  may  take  off  the  execution,  for  clergy  is  allowable  to  a  person 
attaint,  if  the  case  be  within  clergy,  Crompf.  Jurisdic.  of  Courts, 
126.  b.(d)  Dy.  205.  a.  b.  and  it  is  held,  outlawry  upon  this  statute 
excludes  not  clergy.  11  Co.  Rep.  29.  b.  Pouller^s  case. 

2.  That  yet  by  the  statute  of  4  <§•  5  P.  cS*  M.  cap.  4,  clergy  is  taken 
away  in  this  case  from  the  accessary  before,  as  well  as  in  case  of 
standing  mute  and  challenging  above  twenty,  or  not  directly  answer- 
ing, for  the  statute  of  4  <§•  5  P.  4'  M.  extends  to  accessaries  before  in 
all  cases  of  robbing  in  dwelling-houses,  as  well  those  within  this 
statute,  as  those  upon  the  statute  of  23  H.  S. 

8.  It  hath  been  held  by  good  opinion,  that  this  statute  extends 
only  to  him  that  actually  enters  the  house  and  steals  there,  and  that 
therefore  \{  ^.  B.  and  C.  come  to  a  house  in  the  day-time  with  an 
intent  to  enter,  and  steal  goods,  and  that  ,./i.  only  breaks  and  enters 
the  house,  and  takes  the  goods,  that  J2.  only  shall  be  excluded  of  his 
clergy,  and  B.  and  C.  that  were  aiding  and  assisting  should  have 

(c)  But  by  3  ^  4  W.  Sf  M.  cap.  9.  it  extends  to  all  these  cases,  as  also  to  the  case  of  an 
outlawry. 

(d)  Crompt.  Justice  110,  b. 


621  HISTORIA  PLACITORUM  CORONA. 

their  clergy:  this  was  the  opinion  of  divers  jtidges  at  a  meeting  in 
Serjeanis-In?i  30  Novemb.  1664.  wiio  grounded  themselves  princi- 
pally upon  Jiudley''s  case,(^)  upon  the  statute  of  39  Eliz.  hereafter 
cited,  but  I  think  they  are  all  to  be  excluded  of  their  clergy  upon 
this  statute  of  5  c^'  6  E,  G.  and  there  cannot  be  .a  stronger  authority 
in  it,  than  the  judgment  of  parUament  in  the  statute  of  4  (§•  5  F.  ($'  M. 
cap.  4.  whereby  it  is  enacted,  "  That  if  any  person  shall  maliciously 
command,  hire,  or  counsel  any  person  to  commit  any  robbery  in  any 
dwelhng-house,  he  shall  be  excluded  of  clergy. 

And,  certainly  he,  that  is  present,  aiding,  and  abetting,  is  more 
than  an-accessary  hefore.,\iw\.  then  perchance  the  indictment  must  not 
run  generally,  t^;a5/?re*e/z/,  aiding,  and  abei ting,  hut  that  B.  andO. 
did  maliciously  command,  hire,  or  counsel  A.  to  commit  the  fact, 
l)y.  1S3.  6.  11  Co.  Rep.  37.  a  P ou I ter^s  case;  tho,  in  my  own 
£  522  2  opinion,  the  words  maliciously  present,  aiding,and  abetting, 
do  countervail  the  former,  and  much  more,  and  it  cannot  be 
-intended,  that  the  statute  meant  to  take  away  clergy  from  those  that 
maliciously  counsel  or  command,  which  at  most  makes  but  an  acces- 
sary, and  yet  that  he  that  is  present  and  abetting,  shall  have  his 
clergy. 

But,  in  my  opinion,  all  may  be  indicted,  quod  fregerunt  &(•  intra- 
verunt,  8fc.  as  in  case  of  burglary  or  robbery,  and  it  dift'ers  from  the 
statute  of  39  Eliz.  and  the  rather,  because  the  statute  of  4  4'  5  P.  S; 
M.  extends  not  to  offenses  made  after  by  39  Eliz. 

4.  This  statute  extends  not  to  breaking  of  the  house  with  an  intent 
to  rob  it,  but  there  must  be  an  actual  robbing,  or  taking  away  goods. 

5.  The  robbing  by  day  or  night  is  within  this  statute. 

6.  The  dweller,  his  wife,  children  or  servants  must  be  within  the 
precinct  of  the  house  sleeping  or  waking,  but  it  is  not  necessary  they 
should  be  put  in  fear,  neither  is  it  necessary  they  should  be  in  the 
same  room  where  the  robbery  is  done. 

7.  But  it  is  not  enough,  that  a  stranger  be  in  the  house,  unless  the 
owner,  his  wife,  children,  servants  or  some  of  them  be  in  the  house 
at  the  time  also,  tho  it  be  enough  upon  the  statute  of  1  E.  6.  cap.  12. 
~  S.  There  must  be  not  only  an  actual  stealing  of  some  goods  in  the 
house,  but  an  actual  breaking  of  the  house,  for  the  statute  speaks  o-f 
robbing,  which  imports  more  than  a  bare  taking  of  goods. 

t^ug.  14  Car.  1.  Thomas  Williams,  Thomas  Bates,  and  Richard 
Harper  having  broken  the  lodgings  of  Sir  PI.  Hungate  at  Whitehall, 
and  taken  thence  several  goods  of  Sir  H.  Hungate,  Croke  and 
Crowley  were  advised  with,  to  pen  the  indictment,  who  agreed  these 
points;  1.  It  must  be  laid  for  breaking  tho  king's  mansion-house 
called  Whitehall,{f)  and  stealing  the  goods  of  Sir  H.  Hungate,  for 
all  the  lodgings  in  Whitehall  were  part  of  the  king's  house,  and 
ditfer'd  from  an  inn  of  court,  where  each  chamber  is  a  seve- 
[  5233  '■''^1  mansion-house,  because  every  one  hatha  several  interest 
in  his  ciiamber.  2.  That  upon  the  statute  of  5  <5*  6  E.  6. 
the  indictment  need  only  be,  that  he  broke  the  king's  house  called 

(e)  Cro.  Car.  473.  by  the  name  of  Evans.  (/)  Sec  Kel.  27. 


HISTORIA  PLACITORUM  CORONA.  523 

Whitehall,  and  stole  the  goods  of  Sir  //.  Hitngaie,  (\ivers  of  the 
king's  servants  then  being  in  the  house,  without  saying,  that  any- 
body was  put  in  fear  (which  was  necessary  by  the  statute  of  23  H. 
8.)  but  merely  upon  the  statute  of  5  <§'  6  E.  6.  and  accordingly  tl^e 
indictment  was  drawn.  3.  That  upon  an  indictment  uj)on  23  //.  8. 
or  upon  5  E.  6,  there  must  be  an  actual  brealung  of  the  house,  and 
also  a  robbery  or  stealing  of  some  thing. 

4.  That  if  a  thief  come  into  the  house,  the  doors  being  open,  and 
then  breaks  open  a  chamber-door,  and  steals  goods  from  thence,  this 
ig  a  breaking  of  the  house  within  those  statutes,  and  accordingly  at 
the  gaol-delivery  at  the  Old  Bailey,  29  ^t/g.  14  Car.  1.  those  two 
justices  being  present,  they  were  indicted,  and  Harper  being  fled,tlie 
other  two  were  found  gnilty;  Williams  was  reprieved  before  judg- 
ment, but  Bates  was  executed,  ex  libro  Twisclen. 

Upon  this  latter  resolution  it  seems,  that  Bayne^s  case  in  Pop- 
ham^s  Rep.  36  4'  37  Eliz.  n.  10  was  somewhat  too  severe(^),  where 
one  came  into  a  tavern  to  drink,  and  stole  a  cup  that  was  brought 
them  to  drink  in,  the  owner  and  his  servants  being  in  the  house,  and 
upon  this  lie  was  ousted  of  his  clergy  upon  tlie  statute  of  5  8,'  6  E.  6. 
which  case  was  doubted  by  the  justices  upon  a  meeting  among  them 
Novemb.  1664.  but  it  was  then  agreed,  if  two  come  into  a  tavern  to 
drink,  the  door  being  open,  and  divers  of  the  family  being  in  the 
house,  and  one  goes  up  stairs  and  breaks  a  chamber-door,  and  steals 
goods,  and  both  depart  before  the  felony  be  discovered ;  resolved  by 
us  all,  that  clergy  is  taken  away  from  him  that  breaks  open  the  door, 
if  he  be  indicted  upon  the  statute  of  5  E.  6.  but  not  from  the  other, 
for  the  breaking  of  the  door  was  an  act  of  violence,  and  so  the  break- 
ing of  a  counter  or  chest  •,(A)  for  a  chest  vide  postea. 

But  tho  the  breaking  of  the  door,  or  perchance  of  a  counter,  may 
be  such  an  act,  as  may  make  it  a  robbery  within  the  statute  of  5  E.  6. 
yea,  and  altho  in  that  case  before-mentioned,  and  in  a  case 
upon  a  special  verdict  out  of  Cambridgeshire  before-men-  [[524'] 
tioned,  it  was  held  the  breaking  of  a  chest  was  all  one  as  to 
this  purpose  with  the  breaking  of  a  door,  tho  the  chest  were  not  fixed 
to  the  freehold,  quod  videa  ante  cap.  43.  yet  I  must  needs  say,  that 
the  course  at  Newgate  hath  been  always  since  my  time,  that  the 
breaking  open  of  a  chamber-door,  and  of -a  counter  or  cupboard  fixed 
to  the  freehold,  hath  brought  it  within  the  statute  of  5  E.  6.  to  oust 
of  clergy;  yet  when  a  party  enters  the  doors  open,  and  breaks  up 
only  a  chest  or  trunk,  and  steals  thence  goods,  that  is  not  such  a  rob- 
bery, as  is  within  the  statute  of  5  E.  6.  to  oust  of  clergy,  and  so  was 
the  difference  agreed  at  Newgate  1671.  upon  the  robbery  of  the  cook 
o(  Serjeants-inn  in  Fleet-street,  by  certain  persons  that  came  in  to 
eat,  and  slipt  up  stairs,  and  picked  open  a  chamber-door,  and  broke 
open  a  chest,  and  stole  plate  of  good  value:  it  was  agreed,  that  the 
picking  open  the  lock  of  the  chamber-door  brought  it  within  the 
statute  to  oust  clergy,  but  the  breaking  open  of  a  chest  or  trunk  only 

ig)  This  case  denied  to  be  law,  Kel.  68.  (A)  See  Kel.  69. 


524  HISTORIA  PLACITORUM  CORONA. 

would  not  oust  clergy  upon  the  statute  of  5  E.  6.  or  39  Eliz.  and  so 
by  Zee  secondary  was  the  constant  course  at  Newgate  in  his  time. 

As  to  robbery  in  booths  or  tents  in  fairs  and  markets,  within  the 
5  E.  6.  cap.  12.  H.  A\  Eliz.  B.  R.  the  robbing  of  a  shop  in  West- 
minsieK-hall  was  ruled  not  to  be  within  this  statute  to  be  ousted  of 
clergy. 

If  a  servant  opens  a  chamber-door  in  his  master's  house,  and  stesiis 
goods,  Sir  N.  Hyde,  wiio  was  severe  enough  in  cases  criminal, 
doubted  whether  this  were  within  this  statute  to  oust  him  of  his 
clergy:  vide  infra. 

IV.  The  next  statute  relating  to  this  matter  of  robbing  in  houses 
is  39  Eliz.  cap.  15.  which  recites,  that  the  penalty  of  robbing  of 
houses  in  the  day-time,  no  persons  being  in  the  house  at  the  time  of 
the  robbery  committed,  is  not  so  penal  as  robbery  in  any  house,  any 
person  being  therein  at  the  time  of  the  robbery  committed,  which 
hath  emboldened  persons  to  commit  heinous  robberies  in  breaking 
and  entering  persons  houses,  none  being  in  the  same,  and  enacts, 
"  That  if  any  person  shall  be  found  guilty  by  verdict,  con- 
[]525]]  fession,  or  otherwise  for  the  felonious  taking  away  in  the 
day-time  of  money,  goods,  or  chattels  to  the  value  of  five 
shillings  or  upwards,  in  any  dwelling-house,  or  any  part  thereof,  or 
any  out-house  or  out-houses  belonging  and  used  with  the  said  dwell- 
ing-house or  houses,  altho  no  person  shall  be  in  the  said  house  or 
houses  at  the  time  of  the  felony  committed,  every  such  person  shall 
be  excluded  from  the  benefit  of  clergy. 

Upon  this  statute  these  things  are  observable: 

1.  That  the  indictment,  whereupon  such  person  is  to  be  excluded 
of  the  benefit  of  his  clergy,  ought  precisely  to  follow  the  statute,  viz. 
it  must  be  in  the  day-time,  and  no  person  being  in  the  house,  and 
must  appear  to  be  so  upon  evidence. 

2.  And  therefore,  if  either  the  indictment  pursue  not  the  statute, 
or  the  evidence  make  not  good  the  indictment,  he  is  to  have  his 
clergy,  and  therefore  upon  such  an  indictment  he  may  be  acquitted 
of  stealing  against  tlie  form  of  the  statute,  and  found  guilty  of  simple 
felony  at  common  law,  tho  the  indictment  conclude  contra  formam. 
statuti;  and  the  same  law  it  is,  if  an  indictment  be  formed  upon  the 
statute  of  23  H.  8.  or  5  4*  6  E.  6.  for  tho  the  indictments  in  those  cases 
be  special,  and  conclude  sometimes  contra  formam  statuti,  yet  they 
include  felony  at  common  law,  and  tho  the  indictment  concluding  con- 
tra formam.  statuti  be  good,  it  is  not  necessary,  so  as  the  circum- 
stances required  by  the  statute  be  pursued,  for  tlie  statutes  in  these 
cases  make  not  the  felony,  but  only  exclude  clergy,  when  the  felony 
is  so  circumstantiated,  as  the  statute  mentions,  and  is  so  expressed  in 
the  indictment.  ^ 

.3.  If  the  indictment  be  formed  upon  this  statute,  a«  that-  he  broke 
and  entred  the  house  in  the  day-time,  and  stole,  no  person  being  in 
the  honse,  if  it  appear  upon  tho  evidence,  that  the  felony  was  coni- 
juitted  without  these  circumstances,  as  if  it  were  committed  in  the 


HISTORIA  PLACITORUM  CORONA.  525 

night,  or  not  in  the  day,  so  that  it  is  burglary,  or  if  committed  when 
some  of  the  family  were  in  the  house,  in  which  case  he  had  been 
ousted  of  his  clergy  by  the  statute  of  5  4*  6  E.  6.  if  the  indictment 
had  been  ,formed  upon  that  statute,  yet  in  such  case  the  offender 
being  specially  indicted  upon  the  statute  of  39  Eliz.  shall  be 
found  guilty  of  simple  felony  at  common  law,  and  shall  not  [  526  ] 
be  ousted  of  his  clergy  by  the  statute  of  23  //.  8.  1  ^.  6.  5  & 
6  E.  6.  or  IS  Eliz.  cap.  7.  because  the  indictment  is  not  formed  upon 
those  statutes,  but  only  upon  39  Eliz.  and  if  the  circumstances  of  the 
statute  of  39  Eliz.  upon  which  the  indictment  is  formed,  be  not  pur- 
sued in  the  evidence,  he  must  have  his  clergy,  and  so  is  the  constant 
practice, 

4^  Altho  this  statute  of  39  Eliz.  in  the  body  of  the  act  speaks 
only  of  stealing,  yet  in  as  much  as  the  preamble  speaks  of  robbery, 
it  hath  been  always  taken,  that  upon  this  statute,  as  well  as  upon 
the,  statute  of  5  E.  6.  there  must  be  these  three  things  concur  to  oust 
clergy :  1.  There  must  be  an  actual  stealing  or  taking  away  of 
goods  of  some  value  upon  the  statute  of  5  <^'  6  E.  6.  and  of  goods  to 
the  value  of  five  shillings  upon  this  statute,  but  it  is  not  necessary, 
that  the  goods  be  carried  out  of  the  house,  for  if  he  take  them  out  of 
a  trunk  or  cupboard,  and  lay  them  in  the  room,  and  be  apprehended 
before  he  carry  them  away,  it  is  a  stealing  within  the  statutes,  and  at 
common  law  also,  as  was  resolved  by  all  the  judges,  uno  dissentiente, 
in  a  case  out  of  Camhridgeshire  upon  a  special  verdict  there  found 
upon  an  indictment  upon  the  statute  of  5  4*  6  E.  6.  anno  1664.(/)  2.  It 
must  be  a  stealing  of  goods  in  the  house,  and  therefore  he  that  steals, 
or  is  party  to  the  stealing  them,  being  out  of  the  house,  is  not  by  this 
statute  to  be  ousted  of  his  clergy.  3.  Upon  this  statute,  as  well  as 
upon  the  statute  of  5  <§'  6  E.  6.  there  must  be  some  act  of  force  or 
breaking.{k) 

Now  what  shall  be  said  such  a  force,  as  must  bring  the  party 
within  this  statute,  hath  been  touched  before,  to  which  I  add,  1.  That 
whatsoever  breaking  will  make  a  burglary,  if  it  were  in  the  night, 
will  make  such  a  force  or  breaking,  as  is  within  this  statute 
and  that  of  5  E.  6,  to  oust  the  thief  of  iiis  clergy,  as  if  he  f  527  1 
break  open  the  outward  or  inward  door  of  the  house,  pick 
the  lock  of  such  door,  draw  the  latch,  break  open  the  window,  ^-c. 
2.  Some  breaking  or  force  will  oust  clergy  upon  the  statutes  of  5  8c 
6  E.  6.  and  39  Eliz.  which  will  not  make  a  burglary,  if  it  were  in 
the  night,  as  where  he  enters  by  the  doors  open,  and  breaks  open  a 

(t)  This  was  Simpson's  case  mentioned  below,  and  is  reported  Kel.  31. 

ik)  Bui  now  by  10  i^-  11  W.  3.  cap.  23.  "  Whoever  by  nig-ht  or  day  shall  in  any  shop, 
ware-house,  c6ach-liouse,  or  stable,  privately  and  feloniously  steal  to  the  value  of  5s.  or 
more,  tho  such  shop  he  not  broke  open,  nor  any  person  therein,  or  shall  assist,  hire  or 
command  any  person  to  commit  such  offense,  shall  be  excluded  from  the  benefit  of 
clergy."    Now  repealed  and  supplied. 

And  by  12  Ann.  cip.  7.  "Whoever  shall  feloniously  steal  to  the  value  of  40s.  in  any 
dwelling-house  or  out-house  thereto  belonging,  altho  it  be  not  broken,  nor  any  person 
therein,  their  aiders  or  assisters  arc  excluded  from  clergy."     Repealed  aqd  supplied. 


527  HISTORIA  PLACITORUM  CORONA. 

counter  or  cupboard  fixed  to  the  freehold,  as  was  agreed  in  the  Cam- 
b?'idgeshire  case  hefore-mentiond. 

7'.  16  Car.  2.  Si mson's  case,  where  the  case  was  thus:  a  man 
came  into  a  dwelling-house,  none  being  within,  and  the  doors  being 
open,  and  broke  up  a  chest,  and  took  out  goods  to  the  value  of  five 
shillings,  laid  tliem  on  the  floor,  and  before  he  could  carry  them  out 
of  the  chamber,  he  was  apprehended,  and  upon  this  matter  specially 
found  he  was  ousted  of  his  clergy  upon  the  statute  of  39  Eliz.  for  the 
taking  them  out  of  the  chest  was  felony  by  the  common  law,  and  tjie 
statute  of  39  Eliz.  did  not  alter  the  felony,  but  only  excluded 'clergy; 
per  omnes  justiciarios  Anglias.  Ex  lihro  Bridgman. 

But  whereas  in  that  case  the  breaking  open  of  the  chest  was  held 
such  a  force  or  breaking,  as  excludes  clergy  upon  that  statute,  I  have 
observed,  that  the  constant  practice  at  Newgate  hath  not  allowed 
that  construction,  unless  it  was  a  counter  or  cupboard  fixed  ;  yet  note, 
this  resolution  of  16  Cur.  was  by  all  the  judges  of  England  then 
present,  and  tho  one  dissented, 'he  after  came  about  to  the  opinion  of 
the  rest,  Ideo  qusere. 

T.  13  Car.  1  B.  R.  Eva}is  and  Finch{l)  were  arraigned  ai  New- 
gate upon  an  indictment,  that  they  at  twelve  of  the  clock  in  the  day, 
domiun  mansionalern  Hugonis  Audely  de  interiuri  templo,  nulld 
persona  in  eadeni  domo  existente,fregerunt,  <5*  40/.  from  thence  did 
steal,  a  special  verdict  was  found,  that  Evans  by  a  ladder  climbed 
up  to  the  upper  window  of  the  chamber  of  H.  Audely,  and  took  out 
of  the  same  forty  pounds,  and  Finch  stood  upon  the  ladder  in  view 
oi  Evans,  and  saw  Evans  in  the  chamber,  and  was  assisting  to  the 
robbery,  and  took  part  of  the  money,  and  that  at  the  time  of  the  rob- 
bery divers  persons  were  in  the  Inner  Temple-hall,  and  in 
[528]]  divers  other  parts  of  the  house ;  ruled,  1.  That  a  chamber 
in  an  inn  of  court  is  domus  mansionalis  within  the  statute 
of  39  Eliz.  of  him  who  was  the  owner  of  the  chamber.  2.  That  allho 
this  chamber  was  parcel  of  the  Inner  Temple,  and  other  persons 
were  in  the  hall  and  other  parts  of  the  Inner  Temple,  yet  no  person 
being  in  the  chamber,  this  o  tie  nee  was  within  the  statute  of  39  Eliz. 
and  so  it  differs  from  tlie  case  of  Whitehall  before-mentioned,  where 
the  indictment  was  upon  the  statute  of  5  4'  6  E.  6.  3,  That  in  as  much 
as  Evans  was  only  in  the  chamber,  and  Finch  entered  not  the  cham- 
ber, ^t»an.s  had  judgment  of  death,  and  i^/ncA  had  his  clergy.  ' 

And  the  like  law  had  been  upon  the  statute  of  5  c^*  6  E.  6.  as  is 
before  declared,  for  these  statutes  only  exclude  the  parties,  that  actu- 
ally take  out  of  the  dwelling-house,  not  those  that  are  present  and 
asscnters,(7;z)  as  hath  been  also  before  declared(?i)  upon  the  statute 
of  1  Jac.  of  stabbing. 

(Z)  Cro.  Car.  473. 

(wj)  But  by  3  4f  4  W.  S^  M.  cap.  9.  clergy  is  taken  away  from  all,  who  comfort,  aid,  abet, 
assist,  counsel,  hire,  or  command  any  jJorHon  feloniously  to  break  any  dwelling-liouse; 
shop,  or  ware-house  thereto  belonging,  and  filoniously  to  take  away  any  ihoncy,  goods, 
SfC,  to  the  value  of  5s.  or  upwards,  allho  no  person  be  within  the  same. 

(n)  Vide  antea,  p.  4C8. 


HISTORIA  PLACITORUINI  CORONiE.  528 

And  herein  it  differs  from  burglary  and  robbery,  for  therein  all 
persons,  that  are  present,  aiding,  and  assisting,  are  equally  burglars  or 
robbers  with  him,  that  enters  or  aciually  takes;  but  of  this  hereafter. 

But  this  statute  of  39  Eliz.  takes  not  away  the  benefit  of  clergy, 
where  the  offender  stands  mute,  but  only  in  the  case  of  conviction  by 
verdict,  confession,  or  otherwise  according  to  the  laws  of  the  realm; 
qusere  of  outlawry,  for  there  the  party  is  attaint  indeed,  but  not  found 
guilty,  for  if  he  reverse  the  outlawry,  he  shall  plead  to  the  felony, (o) 

And  thus  far  for  those  larcinies,  that  relate  to  the  dwelling-house 
of  any  wherein  clergy  is  excluded, 

V.  The  next  statute,  that  excludes  from  clergy,  is  the  statute  of 
1  E.  6.  cap.  12.  and  2  Sf-  2  E.  6.  cap.  33.  which  exclude  clergy  from 
any  person  convict  by  verdict  or  confession  of  stealing  any  horse, 
mare,  or  gelding,  or  wilfully  standing  mute. 

But  it  takes  not  away  clergy  from  accessaries  6e/bre  or  [529] 
after. 

VI.  The  statute  of  8  Eliz.  cap.  4.  by  which  he  that  takes  money 
or  goods  feloniously  from  the  person  of  any  other,  privily,  without 
his  knowledge,  is  ousted  of  his  clergy,  if  convict  by  verdict  or  con- 
fession, or  if  he  challenge  above  twenty  peremptorily,  or  stands  mute, 
or  will  not  directly  answer,  or  be  outlawed. 

Upon  this  statute  these  things  are  observable:  1.  It  doth  not  alter 
the  nature  of  the  felony,  and  therefore,  if  what  he  take  away  so  be 
not  above  the  value  of  twelve-pence,  it  is  only  petit  larcmy,  as  it  was 
before,  and  so  differs  from  the  case  of  robbery,  Co.  P.  C.  cap.  16. 
p.  68.  Crompt.  de  Pace,  fol.  33.  b.  2.  The  indictment  must  be  pur- 
suant to  the  statute,  viz.  quod  felonict  S^'C.  clam  <§'  secrete  a  persona^ 
^'C.  cepit,  otherwise  the  offender  hath  his  clergy.  3.  It  doth  not  oust 
accessaries  of  their  clergy,  nor  it  seems  doth  it  oust  any  of  his  clergy 
but  him,  that  actually  picks  the  pocket,  and  not  those  that  are  present, 
aiding  and  assisting,  upon  the  reason  of  Evan's  case  before,  for  it 
shall  be  taken  literally. 

By  an  act  of  this  parliament,  viz.  *  *  *  (^) 

See  table  of  the  principal  matters  in  Foster,  Tit.  Clergy. 


CHAPTER  XLV.  [530] 

CONCERNING    PETIT    LARCINY. 

Petit  larciny  is  the  felonious  stealing  of  money  or  goods  not  above 
the  value  of  twelve-pence  without  robbery,  for  altho  that  by  some 
opinions  the  value  of  twelve-pence  make  grand  larciny,  22  ^ssiz.  39. 

(o)  But  now  by  3  &;  4  W.  Sf  M.  cap.  9.  clergy  is  expressly  taken  away  in  case  of  out- 
lawry, or  of  stinding  mute,  <^c. 

(/))  This  was  left  unfinislied  by  our  author,  but  I  suppose  the  statute  here  meant  is 
22  Cflrf  2.  cap.  5.  which  "All  who  shall  feloniously  steal  woollen  manufactures  from  the 
tenters,  or  shall  embezzle  the  king-'s  naval  stores,  are  excluded  from  clergy. 

As  to  subsequent  statutes,  which  take  away  clergy  from  larciny  in  dwelling-houses, 
vide  postea  subjine  cap.  48. 

VOL.  I. — 47 


530  HISTORIA  PLACITORUM  CORONA. 

per  Thorp,  yet  the  law  is  settled,  that  it  must  exceed  twelve-pence 
to  make  grand  larciny.    West  1.  cap.  \5.{a)  8  E.  2.  Coron.  404. [1] 

The  judgment  in  case  of  petit  larciny  is  not  loss  of  life,  but  only 
to  be  whipt,  or  some  such  corporal  punishment  less  than  death,  and 
yet  it  is  felony,  and  upon  conviction  thereof  the  offender  Ibseth  his 
goods,  for  the  indictment  xnusfelonice.  27  H.  8.  22. 

A  party  indicted  of  petit  larciny  and  acquitted,  yet  if  it  be  found, 
he  fled  for  it,  forfeits  his  goods,  as  in  case  of  grand  larciny.  •  8  E.  2. 
Coron.  406.  Sfamf.  P.  C.p.  184.  a. 

But  in  case  of  petit  larciny  there  can  be  no  accessaries  neither  be- 
fore nor  after.  P.  9.  Jac.  12  Co.  Rep.  81. 

If  two  or  more  be  indicted  of  stealing  goods  above  the  value  of 
twelve-pence,  tho  in  law  the  felonies  are  several,  j'-et  it  is  grand  lar- 
ciny in  both.  8  E.  2.  Coron.  404. 

■  But  if  upon  the  evidence  it  appears,  that  J2.  stole  twelve-pence  at 
one  time,  and  B.  twelve-pence  at  another  time,  so  that  the  acts  them- 
selves were  several  at  several  times,  tho  they  were  the  goods  of  the 
same  person,  this  is  petit  larciny  in  each,  and  not  grand  larciny  in 
either. 

\i  Jl.  be  indicted  of  larciny  of  goods  to  the  value  of  five  shillings, 
yet  the  petit  jury  may  upon  the  trial  find  it  to  be  but  of  the  value  of 
twelve-pence,  or  under,  and  so  petit  larciny.  41  E.  3.  Coron.  451. 
18  .assiz.  14.  Starnf.  P.  C.p.  24,  b. 

If  j3.  steal  goods  of  ^.  to  the  value  of  six-pence,  and  at 
fSSl]  another  time  to  the  value  of  eight-pence,  so  that  all  put  to- 
gether exceed  the  value  of  twelve-pence,  tho  none  apart 
amount  to  twelve-pence,  yet  this  is  held  grand  larciny,  if  he  be  in- 
dicted of  them  altogether, [2]  Stamf.  P.  C.  p.  24.  collected  from  the 
book  of  8  E.  2.  Coron.  415.  Daii.  cap.  lOl.  p.  259. (b) 

But  if  the  goods  be  stolen  at  several  times  from  several  persons, 
and  each  a-part  under  value,  as  from  ^.  four-pence,  from  B.  six- 
pence, from  C.  ten-pence,  these  are  several  petit  larcinies,  and  tho 
contained  in  the  same  indictment  make  not  grand  larciny. 

But  it  seems  to  me,  that  if  at  the  same  time  he  steals  goods  of  »/S. 
of  the  value  of  six-pence,  goods  o(  B.  of  the  value  of  six-pence,  and 
goods  of  C.  to  the  value  of  six-pence,  being  perchance  in  one  bundle, 
or  upon  a  table,  or  in  one  shop,  this  is  grand  larciny,  because  it  was 
one  entire  felony  done  at  the  same  time,  tho  the  persons  had  several 
properties,  and  therefore,  if  in  one  indictment,  they  make  grand 
larciny.[3]  '  « 

(a)  2  Co.  Instit.  190.  (b)  New  Edit.  cap.  154.  p.  494. 

[1]  Tliis  distinction  between  grand  and  petit  larceny  is  now  aboHshed  by  7  &  8' Geo. 
IV.  c.  29,  8.  2.     See  liyland's  note  to  4  BL  Com.  229.  i'dth  Land.  Ed.  1836. 

[2]  Birdseye's  case,  4  Carr.  Sf  Paij.  38G.  Jones's  case,  Id.  217.  2  East's  P.  C.  740, 

[3]  It  is  manifest  that  the  defendant  micrht  have  three  different  defences  as  to  the 
taking  of  tlic  property  of  ihrcc  owners.  Wi)uld  not  a  sing-lc  count,  which  compelled  a 
defondiint  to  make  thcce  distinct  dflcnccs,  as  to  three  distinct  pieces  of  property  of  three 
different  owners,  be  bad  for  duplicity.     See  Com.  v.  Andrews,  2  Mass.  R.  409. 


HISTORIA  PLACITORUM  CORONiE.  531 

If  A.  steal  cJam  (§«  secretl  out  of  the  pocket  of  B.  twelve-pence, 
tho  the  statute  of  8  Eliz.  take  away  clergy  from  a  pick-pocket,  yet 
it  is  but  petit  larciny ;  quod  vide  supra  p.  529. 

And  so  if  a  man  could  possibly  steal  a  horse  of  the  value  of 
twelve-pence  only,  or  under,  or  break  a  house  in  the  day-time,  and 
steal  goods  only  of  the  value  of  twelve-pence,  the  owner,  his  wife  or 
children  being  in  the  house,  and  not  put  in  fear,  this  will  be  but  petit 
larciny,  notwithstanding  the  statute  of  5  4*  Q  E.  6.  take  away  clergy, 
for  that  statute  altered  not  the  nature  of  the  offense,  but  takes  away 
qlergy,  where  clergy  was  before,  namely  where  the  offense  was  capi- 
tal, as  in  case  of  grand  larciny. 

But  if  they  were  put  in  fear,  then  it  would  be  robbery,  how  small 
soever  the  value  were,  and  so  could  not  sink  into  the  nature  of  petit 
larciny  5  but  of  this  in  the  next  chapter.[4] 


CHAPTER  XLVI.  [532] 


OF    ROBBERY. 


Robbery  is  the  felonious  and  violent  taking  of  any  money  or  goods 
from  the  person  of  another,  putting  him  in  fear,  be  the  value  thereof 
above  or  under  one  shilling. 

In  this  case  it  is  to  be  considered,  1.  What  is  a  felonious  taking 


[4]  In  Nkvv  York,  under  the  statutes,  petit  larceny  is  not  a  felony.  Carpenter  v. 
Nixon,  5  HiWs  Rep.  520.  Ward  v.  The  People,  3  HiWs  Rep.  395.  In  it  there  are  no 
accessaries,  but  all  concerned  in  the  commission  of  the  offence  are  principals.  Id.  2  N.  Y. 
Rev.  St.  690. 

To  constitute  petit  larceny  the  sum  stolen  must  be  under  $25.  Id. 

In  Pennsylvania,  twenty  shillings  under  the  Act  o£  April,  1790.  Stroud's  Purd,  956. 
eik  ed. ;  1052.  ith  ed. 

In  New  Jersey,  the  same  as  in  New  York.  Rev.  Stat,  of  1847,  jj.  266. 

In  Virginia,  to  constitute  petit  larceny,  the  sum  must  be  under  $10.  Sup,  Rev.  Code, 
298.  sue. 

In  South  Carolina,  in  the  case  of  The  State  v.  Wood,  1  S.  C.  Rep.  29.  it  was  ruled 
that  on  an  indictment  for  grand  Lirceny  the  jury  may  find  petit  larceny.  Chase,  J,  said 
"he  tiad  been  informed  by  his  brethren  thai  the  Abjection  of  the  indictment  being  for 
grand  larceny,  the  verdict  for  petit  larceny  was  unauthorized,  had  been  often  overruled ;" 
and  cited  2  East's  P.  C.  778.  where  it  is  so  laid  down. 

In  Tennessee,  an  indictment  in  the  county  court  for  petit  larceny  in  stealing  goods 
of  greater  value  than  twelve-pence  should  conclude  against  the  form  of  the  statute.  The 
second  section  of  the  Act  of  1807  has  changed  the  nature  of  this  offence  in  this  as  in 
some  other  States,  viz.  that  petit  larceny  shall  consist  in  stealing  property  under  the 
v^lue  of  $10.  At  common  law  it  consisted  of  stealing  property  under  the  value  of 
iwclvc-pencc, as  stated  in  Hale's  text.  See  The  State  v.  Humphries,  1  Overton's  (Tenn.) 
R.  107. 


532  HISTORIA  PLACITORUM  CORONA. 

from  the  person. [1]  2.  Who  shall  be  said  a  felonious  taker  from  the 
person  of  a  man.  3.  What  violence  or  putting  in  fear  is  requisite  to 
make  up  robbery.  4.  In  what  cases  such  a  robber  is  admissible  to 
his  clergy. 

As  to  the  first. 

I.  There  must  be  in  case  of  robbery  (as  also  in  all  cases  of  larciny^ 
something  feloniously  taken,  for  altho  antiently  an  assault  to  the 
intent  to  rob,  or  an  attempt  to  rob  was  reputed  felony,  voluntas 
reputabatur  pro  facto,  25  E.  3.  42,  13  H. '\.  7.  per  Gascoigne 
27  Assiz.  38.  yet  the  law  is  held  otherwise  at  this  day,(«)  and  for  a 
long  time  since  the  time  of  Edward  III.  and  therefore  if  »^.  lie  in 
wait  to  rob  B,  and  assault  him  to  that  purpose,  and  require  him  to' 
deliver  his  purse,  yet  if  de  facto  he  hath  taken  nothing  from  him, 
this  is  not  felony,  but  only  a  misdemeanor,  lor  which  he  is  punisha- 
ble by  fine  and  imprisonment.  9  E.  4.  26.  b.  Stamf.  P.C.p.  27.  b. 
Co.  P.  C.  p.  68. 

There  is  a  double  kind  of  taking,  viz.  a  taking  in  law,  and  a  taking 
in  fact. 

If  thieves  come  to  rob  ,/?.  and  finding  little  about  him  enforce  him 
by  menace  of  death  to  swear  upon  a  book  to  fetch  them  a  greater 
sum,  which  he  doth  accordingly,  this  is  a  taking  by  robbery,  yet  he 
■was  not  in  conscience  bound  by  such  compelled  oath,  for  the  fear 
continued,  tho  the  oath  bound  him  not,  and  in  that  case  the   in- 

(a)  Plowd.  Com.  259.  b. 


[1]  The  takinjif  must  be  from  the  person  or  in  the  presence  of  the  prosecutor.  U.  S.  v. 
Jones,  3  Wash.  R.  209.  Com.  v.  Snelling,  4  Binn.  R.  379.  Rex  v.  Hamilton,  8  Car, 
4-  ^.  49. 

Where  it  appeared 'that  the  prosecutor  was  with  a  third  person,  who  had  the  prosecu- 
tor's bundle,  and  who,  when  the  prosecutor  was  forcibly  attacked  by  the  defendant, 
dropped  the  bundle  and  ran  to  assist  the  prosecutor,  when  the  prisoner  took  up  the  bun- 
die  and  ran  off,  a  learned  judge  is  said  to  have  doubted  whether  the  offence  was  robbery. 
Rex  V.  Fallows,  5  Car.  &;  P.  501. 

It  is  essential  that  the  property  should  be  taken  against  the  will  of  the  party  robbed. 
Rex  V.  McDaniel,  Foster  Dis.  121. 

The  goods  must  also  appear  to  have  been  taken  animo  furandi,  as  in  cases  of  larceny. 
Archb.  Cr.  P.  245. 

There  must  also  be  an  actual  taking  and  carrying  away.  But  it  is  immaterial 
whether  the  taking  were  by  force  or  upon  delivery;  and  if  by  delivery,  it  is  also  imma- 
terial whether  the  robber  compelled  the  prosecutor  to  it,  by  a  direct  demand  in  tlic  ordi- 
dinary  way  or  upon  any  colourable  pretence.  A  carrying  away  must  also  be  proved; 
and  where  one  meeting  a  man  carrying  a  bed,  told  him  to  lay  it  down  or  he  would  shoot 
him,  and  the  man  accordingly  laid  down  the  bed,  but  the  robber,  before  he  could  take  it 
up  so  as  to  remove  it  from  the  place  where  it  lay,  was  apprehended  :  the  judges  held  that 
the  robbery  was  not  complete.  Rex  v.  Fnrrell,  1  Leach,  C.  C.  362.  Rex  v.  Lapier,  Id. 
320.  Fast.  Dis.  128.  Rex  v.  Mason,  R  Sf  Ry.  419.  Rex  v.  Davies,  2  EasVs  l\  C.  709. 
Rex  v.  Hall,  3  Car.  cV  P.  409.  Rex  v.  Mncauky,  1  Leach,  C.  C.  287.  Rex  v.  Baker,  Id. 
290.  Rex  V.  Stewart,  2  EasCs  P.  C.  702.  Rex  v.  Homes,  Id.  703,*  Rex  v.  Gosnil, 
I  C.Sf  P.  304. 


*  It  was  held  in  the  case  of  Com.  v.  Humphries,!  Mass.  R.  242.  that  an  indictrnent 
was  good  at  common  law  which  alleged  the  stealing,  &c.  by  force  and  violence,  but 
omitted  the  averment  that  the  party  robbed  was  put  in  fear. 


HISTORIA  PLACITORUM  CORONA.  533 

dictment  need  not  be  special,  for  that  evidence  will  maintain  a  gene- 
ral indictment  of  robbery,  44  E.  3.  14.  b.  4  H.  4.  2.  a.  Co.  P.  C.  p.  68. 
Dall.  cap.  100.  p.  257.(6)  who  saith  it  was  so  adjudged  also  in  P. 
36  Eliz. 

If »,'?.  assaults  B.  and  bids  him  deliver  his  purse,  and  B.  delivers  it 
accordingly,  this  is  a  taking,  and  so  it  is  if  B.  refuse,  and  then  JJ. 
prays  him  to  give  or  lend  him  money,  which  B.  doth  accordingly, 
this  is  robbery,  for  B.  doth  it  under  the  same  fear,  Dal.  cap.  100. 
-44  Eliz.  Cromp.  34.  b.  so  it  is  if  B.  throw  his  purse  or  cloak  in  a 
bush,  and  A.  takes  it  up,  and  carries  it  away;  so  if  B.  flying  from 
the  thief  lets  fall  his  hat,  and  the  thief  take  it  and  carry  it  away,  for 
all  is  the  effect  of  the  same  fear.     Dalt.  iibi  supra. 

So  if  A.  without  drawing  his  weapon  requires  B.  to  deliver  his 
purse,  who  doth  deliver  it,  and  ^.  finding  but  two  shillings  in  it 
gives  it  him  again,  this  is  a  taking  by  robbery.  20  Eliz.  Crompt.  34. 
Dalt.  ubi  supra. 

If  ^.  have  his  purse  tied  to  his  girdle,  B.  assaults  him  to  rob  him, 
and  in  struggling  the  girdle  breaks,  and  the  purse  falls  to  the  groiuid, 
this  is  no  robbery,  because  no  taking ;  but  if  B.  take  up  the  purse, 
or  if  B.  had  the  purse  in  his  hand,  and  then  the  girdle  breaks,  and 
striving  lets  the  purse  fall  to  the  ground,  and  never  takes  it  up  again, 
this  is  a  taking  and  robbery.  Co.  P.  C.  p.  69.  Dalt.  cap.  100.  Crompt. 
fol.  35. 

It  is  not  always  necessary,  that  in  robbery  there  should  be  strictly 
a  taking  from  the  person,  but  it  snfRceth  if  it  be  in  his  presence,  as 
appears  by  some  of  the  foriner  instances,  in  case  it  be  done  with  a 
putting  in  fear :  as  where  a  carrier  drives  his  pack-horses,  and  the 
thief  takes  his  horse,  or  cuts  his  pack,  and  takes  away  the  goods:  so 
if  a  thief  comes  into  the  presence  o{  Jl.  and  with  violence,  and  putting 
^.  in  fear,  drives  away  his  horse,  cattle,  or  sheep.  Dalt.  ubi  supra. 
Stamf.  P.  C.  p.  27.  a.     2  East's  P.  C.  556. 

II.  Who  shall  be  said  a  person  robbing  or  taking. 

If  several  persons  come  to  rob  a  man,  and  they  are  all  present,  and 
one  only  actually  takes  the  money,  this  is  robbery  in  all. 

Piidsey  and  two  others,  viz.  Jl.  and  B.  assault  C.  to  rob 
him  in  the  highway,  but  C.  escapes  by  flight,  and  as  they  [534]] 
were  assaulting  him  Jl.  rides  from  Pudsey  and  B.  and  as- 
saults D.  out  of  the  view  of  Pudsey  and  B.  and  takes  from  him  a 
dagger  by  robbery,  and  came  back  to  Pudsey  and  B.  and  for  this 
Pudsey  was  indicted  and  convict  of  robbery,  tho  he  assented  not  to 
the  robbery  of  Z).  neither  was  it  done  in  his  view,  because  they  were 
all  three  assembled  to  commit  a  robbery,  and  this  taking  of  the  dag- 
ger was  in  the  mean  time.    28  Eliz.  B.  R.  Crompt.  34. 

And  so  it  is  if  ^,i.  B.  and  C.  come  to  commit  a  robbery,  and  j1. 
stands  centinel  at  the  hedge-corner  to  watch  if  any  come,  and  B.  and 
C.  commit  the  robbery,  tho  *,i.  was  not  actually  present,  nor  within 
view,  but  at  a  distance  from  them;  and  the  like  in  burglary.  \\  H. 
4.  13.  Co.  P.  C.p.  64. 

(&)  iVew  Edit.  cap.  153.  p.  492. 


534  HISTORIA  PLACITORUM  CORONA. 

III.  What  shall  be  said  a  putting  in  fear,  or  violent  taking.[2] 
Without  putting  in  fear  or  violence  it  is  not  robbery,  but  only  lar- 
Giny,and  the  indictment  must  run,  quod  vi  S,-  armisapud  B.  in  regid 
via  ibidem,  S^-c.  AOs.  in pecuniis  nurneralis  fclonice  S,-  violentlr  cepit 

[2]  Any  threat  calculated  to  produce  terror  is  sufficient  to  consummate  the  offence. 
Thus  if  a  man  takes  another's  cliild  and  threatens  to  des^troy  him  unless  the  other  give 
him  money,  this  is  robbery.    Rex  v.  Reeve,  2  East,  P.  C.  735.     Rex  v.  Donally,  Id.  718. 

So  where  the  defendant,  at  the  head  of  a  mob,  came  to  the  prosecutor's  house  and 
demanded  money,  threatening  to  destroy  the  house  unless  the  money  were  given;  the 
prosecutor  thereupon  "gave  him  5s.,  but  he  insisted  on  more,  and  the  prosecutor  being 
terrified  gave  him  5s.  more;  the  defendant  and  the  mob  took  bread,  cheese,  and  cider 
from  the  prosecutor's  house  without  his  permission  and  departed:  this  was  holden  to  be 
a  robbery.  Rex  v.  Lemynons,  2  East,  P.  C.  731.  Rex  v.  Brown,  Id.  731.  Rex  v.  Astley^ 
Id.  712.     Rex  v.  Winkworth,  4  Carr  Sf  P.  444.  ' 

It  makes  no  matter  wiiat  pretences  were  employed  to  induce  the  owner  to  surrender 
possession,  if  he  was  put  in  bodily  fear.  Merriman  v.  Chippenham,  2  East,  P.  C.  709. 
4  Blac.  Comm.  242.     Rex  v.  Taplen,  2  East,  P.  C.  712. 

If  a  robber  take  a  purse  of  money  from  a  person,  and  restore  it  to  him  immediately, 
saying,  "if  you  value  your  purse,  take  it  back,  and  give  me  the  contents,"  but  is  appre- 
hended before  the  money  is  delivered  to  him,  yet  the  crime  is  completed.  Rex  v.  Peat, 
1  Leach,  C.  C.  228.     2  East,  P.  C.  557.     Rex  v.  Thompson,  R.  Sf  M.  78. 

Taking  money  from  a  woman  at  the  time  of  an  attempt  to  commit  a  rape,  amounts  to 
jobbery,  although  there  was  no  demand  of  money  made  by  the  prisoner,  and  it  was 
clearly  his  original  intent  only  to  commit  a  rape.     Rex  v.  Bhichham,  2  East,  P.  C.  711. 

So  to  take  a  man  by  the  cravat  and  squeeze  him  against  a  wall,  and  in  the  mean  time 
abstract  his  watch  from  his  fob  without  his  knowledge,  is  a  robbery,  though  the  plaintiff 
was  not  afraid,  nor  aware  of  the  robber's  intention.     Com.  v.  Snelling,  4  Binn.  R.  379. 

Where  money  was  given  to  one  of  the  mob  during  the  riots  in  London  in  1780,  upon 
a  knocking  at  the  prosecutor's  door  in  a  menacing  manner:  held  that  it  was  robbery. 
Rex  V.  Taplin,  2  East,  P.  C.  712. 

Where  persons,  under  pretence  of  an  auction,  got  a  woman  into  a  house  and  compelled 
her,  by  threats  of  carrying  her  before  a  magistrate  and  to  prison  for  not  paying  for  a  lot 
pretended  to  have  been  bid  for  by  iier,  to  pay  them  one  shilling  through  fear  of  prison, 
and  for  the  purpose  of  obtaining  her  liberation,  but  without  any  fear  of  any  other  personal 
violence:  Held,  not  robbery,  but  only  duress.     Rex  v.  Wood,  2  East,  P.  C.  732. 

A  woman  went  into  a  mock  auction  shop,  and  it  was  pretended  that  she  had  bid  for 
certain  articles,  and  the  prisoner  threatened  to  take  her  to  Bow-street  and  have  her  sent 
to  Newgate,  unless  she  paid  earnest  for  the  articles,  to  avoid  which,  she  paid  one  shil- 
ling: Held,  that  this  was  not  sufficient  restraint  to  make  this  a  robbery.  Rex  v.  Newton, 
Car.  C.  L.  285. 

If  the  property  be  not  taken  by  violence,  nor  parted  with  through  fear,  it  is  no  rob- 
bery, though  there  were  sufficient  legal  and  reasonable  ground  for  fear,  as  upon  a  threat 
to  charge  one  with  an  unnatural  crime.  Rex  v.  Rcane,  2  East,  P.  C.  734.  2  Leach, 
C.  C.  616. 

The  crime  of  robbery  may  be  committed  by  obtaining  money  from  a  man,  by  threat- 
ening to  charge  him  with  having  been  guilty  of  sodomitical  practices.  Rex  v.  Jones, 
1  Leach,  C.  C.  139. 

This  has,  in  many  cases,  been  holden  to  be  robbery,  see  Rex  v.  Hichnan,  post.;  Rex  v. 
-Egerton,  post,  even  where  it  appeiired  that  the  prosecutor  parted  with  his  money  merely 
through  fear  of  losing  his  character  or  employment  by  such  imputation.  E.ttorting 
money  by  this  or  like  means  has  been  made  a  felony  in  some  Stales  by  statute.  See 
JWass.  Rev.  Stat.c.  125,  sect.  17;  N.  Y.  Rev.  Stat.  P.  IV.  c.  1,3,  5,sec<.  58. 

It  is  equally  a  robbery  to  extort  money  from  a  person  by  threatening  to  accuse  him 
of  an  unnatural  crifne,  whether  the  party  so  threatened  has  been  guilty  of  such  crime  or 
not.     Rex  v.  Gardner,  1  Car.  Sf  I'.  479. 

If  a  man  obtain  property  from  another  by  accusing  him  of  having  been  gfiilty  of  an 
unnatural  crime,  it  will  amount  to  robbery,  although  the  party  was  under  no  apprehen- 
sion of  personal  danger,  and  felt  no  other  fear  than  that  of  losing  his  character.  Rex.  v. 
Hickman,  1  Leach,  C.  C.  278 ;  2  East,  P.  C.  728. 

To  constitute  robbery,  by  taking  money  from  another  upon  a  threat  of  charging  him 


HISTORIA  PLACITORUM  CORONA.  534 

a  persond;  and  therefore  if  the  word  violenter  be  omitted  in  the  in- 
dictment, or  not  proved  upon  the  evidence,  tho  it  were  in  iiltd  via 
regid  Sf  felonicc  cepit  a  persond,  it  is  but  larciny,  and  the  offender 
shall  have  his  clergy.    Dy.  224.  b.  H.  17  Jac.  in  B.  R.{c).   Harman 

(c)  3  Rol.  Rep.  154. 

with  an  unnatural  crime,  the  money  must  be  taken  immediately  upon  the  threat  made, 
and  not  alter  the  parties  have  separated  and  there  has  been  time  for  the  prosecutor  to 
deliberate  and' procure  assistance,  and  especially  after  he  had  consulted  a  friend  who 
was  even  present  at  the  time  when  the  money  was  paid,  though  the  prosecutor  parted 
with  his  money  fr^fn  fear  of  losing  his  character.  Rex  v.  Jackson,  1  East,  F.  C. 
Add.  xxi;  1  Leach,  C.  C.  193  n. ;  2  Leach,  C.  C.  618  n;  and  see  Rex  v.  Cannon, 
R.  Sf  R.  C.  C.  146;  2  Russ.  C.  Sf  M.  87. 

Parting  with  property  upon  charge  of  an  unnatural  crime,  will  not  make  the  taking 
a  robbery,  if  it  is  parted  with  not  from  the  fear  of  loss  of  character,  but  for  the  purpose 
of  prosecuting.  Rex  v.  Fuller,  R.  Sf  R.  C.  C.  408;  2  Russ.  C.  Sf.  M.  88. 
■  Where  money  was  obtained  by  calling  a  man  a  sodomite  and  threatening  him,  but 
the  money  was  parted  with  by  the  prosecutor  not  so  much  from  fear  of  losing  his 
character,  as  from  fear  of  losing  his  place:  Held,  by  a  majority  of  the  judges,  that  it 
was  sufficient  to  constitute  a  robbery.     Rex  v.  Elmstead,  2  liuss.  C.  Sf  M.  86. 

The  parting  with  money  or  goods  through  fear  of  loss  of  character  and  service,  upon 
a  charge  of  sodomitical  practices,  is  sufficient  to  constitute  robbery,  although  the  party 
has  no  fear  of  being  taken  into  custody,  nor  any  dread  of  punishment.  Rex  v.  Eger- 
ton,  R.  Sf  R.  C.  C.  375;  2  Russ.  C.  Sf  M.  87.  See  the  cases  cited  and  discussed  in 
SDeac.C.L.  1136. 

Obtaining  money  from  a  woman  by  threatening  to  accuse  her  husband  of  an  indecent 
assault,  is  not  robbing.  Rex  v.  Edwards,  5  Car.  Sf  P.  518,  S.  C.  nora.  Rex.  v.  Edward, 
1  .V.  Sf  Rob.  257. 

If  a  bailiff  handcuff  a  prisoner,  under  pretence  of  carrying  him  to  prison  with  greater 
safety,  and  by  means  of  this  violence  extort  money,  he  is  guilty  of  robbery.  Rex  v. 
Gascoigne,  1  Leach,  C.  C.2b0;  2  East,  P.  C.  709. 

If  a  gang  of  poachers  attack  a  gamekeeper  and  leave  him  senseless  on  the  ground,  and 
one  of  them  return  and  steal  his  money,  &c.: — Held,  that  one  only  can  be  convicted  of 
the  robbery,  as  it  was  not  in  pursuance  of  any  common  intent.  Rex  v.  Hawkins,  3  Car. 
Sf  P.  392. 

Sed  aliter,  if  a  number  had  associated  themselves  together,  for  the  purpose  of  commit- 
ting a  robbery,  altiiough  one  alone  had  perpetrated  the  act,  as  all  would  have  been  con- 
structively present.  State  v.  Heyward,  2  N.  Sf  M.  312. 

A.  had  set  wires  in  which  game  was  caught :  B.  a  gamekeeper  found  them,  and  took 
them,  with  the  game  cauglit  in  them,  for  the  use  of  the  lord  of  the  manor.  A.  demanded 
them  with  menaces,  and  B.  gave  them  up.  The  jury  found  that  A.  acted  under  a  bona 
fide  impression  that  the  wires  and  game  were  his  property: — Held,  that  it  was  no  rob- 
bery. Rex  V.  Hall,  3  Car.  Sf  P.  409. 

A.  was  attacked  by  robbers,  who,  after  using  very  great  violence  towards  him,  took 
from  him  a  piece  of  paper,  on  which  was  written  a  memorandum  respecting  some  money 
that  a  person  owed  him: — Held,  robbery.  Rex  v.  Bingly,  5  Car.  Sf  P.  602. 

Snatching  an  article  from  a  man  will  constitute  robbery,  if  it  is  so  attached  to  his 
person  or  clothes  as  to  afford  resistance.  Rex  v.  Mason,  R.  Sf  R.  C.  C.  419.  2  Russ.  C. 
Sf  M.  69. 

To  snatch  a  diamond  pin  from  the  head-dress  of  a  lady,  with  such  force  as  to  remove 
it  with  part  of  the  hair,  from  the  place  in  which  it  was  fixed,  is  a  sufficient  violence  to 
constitute  robbery.  Rex  v.  Moore,  1  Leach,  C.  C.  335. 

To  constitute  the  crime  of  highway  robbery,  the  force  used  must  be  force  with  intent 
to  overpower  the  party,  and  prevent  iiis  resistance  ;  and  if  the  force  used  is  not  with 
that  intent,  but  only  to  get  possession  of  the  property  of  the  party  attacked,  it  is  not 
highway  robbery-  Rex  v.  Gnosil.  1  Car.  Sf  P.  504. 

Snatching  property  from  the  hand  of  another,  is  not  sufficient  force  to  constitute  high- 
way robbery.  Rex  v.  Baker,  1  Leach,  C.  C.  290.  2  East,  P.  C.  702, 

Indictment. — A  servant  was  sent  out  by  his  master  to  receive  money  from  his  master's 
customers,  and,  having  received  the  money,  he  was  robbed  of  it  on  his  way  home.   Sem- 


534  HISTORI A  PLACITORUM  CORONA. 

was  indicted  of  the  robbery  of  Halfpenny  in  the  highway;  and  upon 
the  evidence  it  appeared,  that  Harmun  was  upon  his  horse,  and 
required  Halfpenny  to  open  a  gap  for  him  to  go  out,  Halfpenny 
going  up  the  bank  to  open  the  gap,  Harman  came  by  him,  and  slipt 

ble,  that  an  indictment  for  this  robbery,  in  which  the  money  was  laid  to  be  the  property 
of  his  master,  could  not  be  supported,  as  the  money  had  never  been  in  the  possession  of 
the  master.  Reg.  v.  Ruddick,  8  Car.  S(  P.  237. 

And  when  in  such  a  case,  the  objection  was  taken  during  the  trial,  the  judge  directed 
the  jury  to  be  discharged,  and  a  new  indictment  to  be  sent  to  the  grand  jury,  containing 
a  count,  laying  the  property  in  the  servant.  lb, 

A.  and  B.  were  indicted  for  the  offence  of  robbery.  The  jury  foTind  that  A.  took  the 
property  of  the  prosecutor  from  him  by  violence,  and  that  jB.  was  present  during  part  of 
the  time,  and  that  he  was  a  party  with  A.  to  a  design  to  bring  the  prosecutor  to  the  place 
where  he  was  robbed  by  A,  and  to  obtain  property  from  him  on  a  false  charge  of  an 
unnatural  crime,  but  that  he  was  not  aiding  or  assisting  in,  or  privy  to,  the  taking  of  the 
property  from  the  prosecutor,  by  violence:  Held,  by  all  the  judges,  that  in  order  to  con- 
vict jB.  the  indictment  should  have  been  framed  on  the  statute  7  Will.  IV.  Sf  I  Vict.c.  87. 
S.  4.,  and  that  he  could  not,  since  the  passing  of  the  statute,  under  the  circumstances  of 
this  case,  be  convicted  on  an  indictment  charging  the  offence  of  robbery.  Reg.  v.  Taun- 
ton, 9  Car.  Sf  P.  309.  2  M.  C.  C.  R.  118. 

An  indictment  for  robbery  need  not  have  the  word  '•  violently,"  but  it  must  appear 
upon  the  whole  statement  that  violence  was  used.    Rex  v.  Smith,  2  East,  P.  C.  784. 

If  a  prosecutor  declare,  on  an  indictment  of  robbery,  tiiat  he  parted  with  his  property 
without  any  fear  of  violence  to  his  person  or  injury  to  his  character,  the  prisoner  cannot 
be  convicted.  Rex  v.  Reane,  2  Leach,  C.  C.  616.  2  East,  P.  C.  734.  Sed  vide,  Com.  v. 
Snelling,  4  Binn.  R.  379. 

An  indictment  for  a  robbery,  on  an  unmarried  woman,  in  her  maiden  name,  is  good, 
although  she  marry  before  the  indictment  is  found.    Rex  v.  Turner,  1  Leach,  C.  C.  536. 

An  indictment  for  a  highway  robbery  must  state,  that  the  assault  was  feloniously 
made  with  an  offensive  weapon.  Rex  v.  Pelseyman,  2  Leach,  C.  C.  563.  2  East,  P.  C.  783. 

Evidence. — On  an  indictment  for  robbery,  the  declaration  in  articulo  mortis,  of  the 
party  robbed,  is  not  admissible  in  evidence.  Rex  v.  Lloyd,  4  Car.  Sf  P.  233.  1  Greenl.  on 
Ev.  §  156. 

A.  and  B.  were  riding  in  a  gig  together,  were  robbed  at  the  same  time,  A.  of  his 
money,  B.  of  his  watch,  and  violence  used  towards  both.  There  was  an  indictment  for 
the  robbing  of -4.  and  another  indictment  for  the  robbing  of  B.  Held,  that  on  the  trial  of 
the  first  indictment,  evidence  might  be  given  of  the  fact,  of  the  loss  of  the  watch  by  B., 
and  that  it  was  found  on  one  of  the  prisoners,  but  that  no  evidence  ought  to  be  given  of 
any  violence  offered  to  B.  by  the  robbers.  Rex  v.  Rooney,  7  Car.  Sf  P.  517. 

Massachusetts  — Robbery  was  always  punished  as  a  capital  offence  in  this  State, 
until  the  passing  of  the  Statute  of  1804,  c.  143,  by  which  the  punishment  was  reduced 
to  hard  labour  for  life.  This  statute  remained  in  force  until  the  passing  of  Stat.  1818, 
c.  124,  when  robbery,  if  committed  under  certain  circumstances  of  aggravation,  was 
again  punished  with  death. 

The  first  case  that  occurred  after  the  passing  of  the  Statute  of  1818,  c.  124,  was 
77(6  Commonwealth  v.  Michael  Martin,  17  Mass.  Rep.  539,  in  which  it  was  decided  by 
the  unanimous  opinion  of  the  wiiole  court,  that  to  make  robbery  a  capital  offence  within 
the  first  section  of  the  statute,  it  is  sufficient  if  the  party  be  armed  with  a  dangerous 
weapon  with  intent  to  kilt  or  maim  the  person  assaulted,  in  case  such  killing  or  maim- 
ing be  necessary  to  his  purpose  of  robbing,  and  that  he  have  the  power  of  executing 
such  intent.  The  prisoner  wns  indicted  upon  the  first  clause  of  the  first  section  of  tlie 
statute  tor  the  robbery  of  John  Bray,  "being  then  and  there  at  the  time  of  committing 
the  assault  aforesaid,  in  manner  and  form  aforesaid,  armed  with  a  certain  dangerous 
weapon,  called  a  pistol,  with  intent  him  the  said  John  Bray  then  and  there  to  kill  and 
main."  The  defence  set  up  was,  that  to  constitute  the  crime  of  robbery  a  capital 
offence  within  the  statute,  it  must  be  proved  that  there  was  an  absolute  intent  to  kill  or 
maim  the  party  robbed;  at  all  events  whether  the  robbery  could  be  accomplished  withr 
out  killing  or  maiming,  or  not;  and  that  in  the  present  case  the  fact  of  the  prisoner's' 
having  left  the  party  robbed,  without  killing  or  maiming  him,  or  making  an  actual 


HISTORIA  PLACITORUM  CORONA.  534 

his  hand  into  his  pocket,  and  took  out  his  purse;  Halfpenny  not 
suspecting  the  taking  of  his  purse,  until  turning  his  eye  he  saw  it  in 
Har'mayi^s  hand,  and  then  he  demanded  it,  Harmun  answered  him, 
Villain  if  thou  speakest  of  thy  purse,  I  will  pluck  thy  house  over 
■thine  ears,  and  drive  thee  out  of  the  country,  as  I  did  John  Somers, 
and  then  went  away  with  his  purse  ;  and  because  he  took  it  not  with 
such  violence,  as  put  Halfpenny  in  fear,  it  was  ruled  to  be  but 
stealth,  and  not  robbery,  for  the  words  of  menace  were  used 
after  the  taking  of  the  purse,  wherefore  he  was  found  guilty  [  535  ] 
only  of  larciny,  and  had  his  clergy. (d) 

IV.  As  to  the  point  of  clergy  in  robbery.  [3] 

The  statute  of  23  H.  8.  cap.  l.(e)  and  5  S,^  6  E.  6.  cap.  9.  do  not 
oust  robbery  of.  clergy  in  all  cases,  but  only  in  two,  viz.  when  the 
robbery  is  committed  in  a  mansion-house,  the  owner,  his  wife,  chil- 
dren or  servants  being  in  the  house  and  put  m  fear,(/)  or  when 
committed  in  or  near  the  highway. 

(d)  But  it  should  seem,  that  this  was  a  private  stealinor  from  the  person  of  another, 
and  therefore,  if  above  the  value  of  twelve-pence,  would  have  been  ousted  of  clergy  by 
8  Eliz.  cap.  4.  if  the  indictment  had  been  laid  pursuant  to  that  statute. 

(e)  This  statute,  and  that  of  25  H.  8.  cap.  3.  ousts  clergy  only  in  cases  of  conviction, 
standitig  mute,  not  directly  answering,  or  challenging  peremptorily  above  the  number  of 
twenty,  but  does  not  extend  to  the  case  of  an  outlawry,  but  this  seems  to  be  includedin 
the  word  attainted  in  1  E-  6.  cap.  12.  however  it  is  expressly  provided  for  by  3  ^  4  W. 
Sf  M.  cap.  9. 

(/)  Being  put  in  fear  is  necessary  by  the  23  H.  cap.  1.  (and  also  by  1  E.  6.  cap.  12. 
which  perhaps  is  the  statute  intended  by  our  author)  but  by  5  (^  6  £.  6.  cap.  9.  all  that  is 
requisite  is,  that  the  owner,  Sfc.  be  in  the  house,  tho  not  put  in  fear,  for  the  expression 
of  that  statute  is,  the  owner,  Sfc.  being  in  the  house,  whether  sleeping  or  waking. 

attempt  to  do  it,  proved  that  there  was  no  such  intent,  as  by  the  statute  constituted 
an  essential  ingredient  in  the  capital  offence.  This  construction  of  the  statute  was  not 
adopted  by  the  court;  but  they  instructed  the  jury,  that  if  they  were  satisfied  from  the 
evidence  that  the  prisoner  armed  himself  with  a  loaded  pistol  with  intent  to  kill  of 
maim  the  party  whom  he  should  rob,  if  such  killing  or  maiming  were  necessary  for  his 
purpose  of  robbing;  and  that  when  he  assaulted  and  robbed  Major  Bray,  he  had  the 
power  of  executing  such  intent,  and  meant  to  do  it,  if  he  could  not  otherwise  rob  him, 
the  offence  was  capital  according  to  the  statute;  and  they  accordingly  found  the  prisoner 
guilty.  See  the  opinion  of  the  court  at  large,  delivered  by  Parker,  C.  J.  in  which  the 
above  construction  of  the  statute  is  unanswerably  maintained.  The  Massachusetts 
Statutes  will  be  found  in  Rev.  St.  oh.  125,  and  Supp.  127. 

In  Pennsylvania. — To  constitute  robbery  there  must  be  a  felonious  taking  of  pro- 
perty from  the  person  of  another  by  force,  either  actual  or  constructive;  but  if  force  be 
used,  it  is  not  essential  that  the  prosecutor  should  be  either  aware  or  afraid  of  the  taking. 
So  decided,  upon  special  verdict,  in  the  case  of  The  Commonwealth  v.  Snelling,  before 
cited,  in  which  case  it  was  observed,  among  other  things,  by  TUghman,  C.  J.  "If  a  man 
is  knocked  down  and  rendered  senseless,  and  in  that  situation  his  money  is  taken  withr 
out  his  knowledge,  it  shall  not  avail  the  thief  to  say  that  it  was  not  taken  against  the 
consent  of  the  man  whom  he  had  rendered  incapable  of  exercising  the  faculty  of  voli- 
tion."  "  Fear  is  not  an  essential  ingredient  of  robbery;  force  is  sufficient."  See  Com- 
monwealth  v.  Humphries,  7  Mass.  Rep.  242. 

To  constitute  the  crime  of  robbery,  it  is  not  necessary  that  tlie  taking  should  be  from 
the  person  of  the  owner,  it  is  sufficient  if  it  be  done  in  the  presence  of  the  owner,  as  if 
by  intimidation  he  is  compelled  to  open  his  desk  or  throw  down  his  purse,  and  then  the 
money  is  taken  in  his  presence.  Wharton^s  Digest,  151;  U.  States  v.  Jones,  C.  C. 
April,  1819,  cited  by  Wharton  from  MS.  Report,  (3  Wash.  C.  C.  Rep.  209,  S.  C.)  For 
tke  Lenn,  Stats,  see  Stroud's  Purd.  *^Tit,  Robbery  and  Larceny.^' 

[3]  See  note  ante,  ch.  44.  p.  517, 


535  HISTORIA  PLACITORUM  CORONiE. 

And  therefore  Trin.  38  H.  8.  Moore,  n.  16.  p.  5.  A  man  indicted 
of  robbery  in  quddam  via  regid  pedestri  ducenf  de  London  ad 
Islington,  and  accordingly  fonnd  gnilty,  had  his  clergy,  for  the  words 
of  the  statute  are  for  rubbery  in  or  near  the  highway  he  shall  be 
ousted  of  his  clergy,  and  therefore  the  indictment  and  conviction 
must  be  of  a  robbery  in  vel prope.  altatn  viam  regiam,  and  it  is  not 
sufficient  to  say  only  via  regid  or  via  regid  pedestri. 

For  where  any  person  is  to  be  ousted  of  liis  clergy  by  virtue  of  any 
act  of  parliament,  two  things  are  always  requisite.  1.  Tliat  the  in- 
dictment bring  the  fact  within  the  statute,  but  need  not  conclude, 
contra  formam  statuti. 

2.  That  the  evidence  and  finding  of  the  jury  likewise  bring  the 
case  wiihin  the  statute,  otherwise  the  prisoner  is  to  have  his  clergy. 

But  an  indictment  of  a  robbery  in  vel  prope  altam  viam  regiam, 
tho  in  the  disjunctive  is  usual  at  Newgate,  for  if  it  be  either  in  or 
near  it,  tho  an  indictment  ought  to  be  certain,  yet  this  is  not  the  sub- 
stance of  the  indictment,  nor  that  which  makes  the  crime,  but  only  to 
ascertain  the  court  as  to  the  point  of  clergy  to  serve  the  statute. 

A  robbery  is  committed  upon  the  Thames  in  a  ship  there 
[  536  ]  lying  at  anchor  below  the  bridge,  on  that  side  of  the  river 
which  is  in  Middlesex ;  for  this  robbery  Hyde  and  others 
were  indicted  as  of  a  robbery  done  in  vel  prope  attain  viamregiam, 
and  were  ousted  of  their  clergy,  for  the  Thames  is  in  truth  alta  via 
regia  the  king's  high  stream;  and  if  it  were  not,  yet  it  is  not  far  off 
from  it,  and  the  statute  says  near  not  next. 

By  the  statute  of  25  H.  8.  cap.  2.{g)  clergy  is  ousted  upon  ex- 
amination, if  the  original  offense  were  committed  in  another  county, 
and  excluded  from  clergy  by  23  H.Q.  cap.  Land  that  statute  extends 
to  robbery  in  a  mansion-house,  or  in  or  near  the  highway. 

ji.  robs  B.  on  the  highway  in  the  county  of  C.  of  goods  to  the 
value  only  of  twelve-pence,  and  carries  them  into  the  county  of  Z).  it 
is  certain,  that  this  is  larciny  in  the  county  of  D.  as  well  as  in  the 
county  of  C.  but  it  is  only  robbery  in  the  county  of  C.  where  the  first 
taking  was,  and  for  robbery  he  cannot  be  indicted  or  appeald  in  the 
county  of  D.  but  only  in  the  county  of  C.  but  he  may  be  indicted  of 
larciny  in  the  county  of  Z>.  and  it  is  certain,  though  the  robbery  were 
but  of  the  value  of  one  penny,  yet  if./?,  were  indicted  thereof  in  the 
county  of  C.  he  should  have  had  judgment  of  death,  and  been  ex- 
cluded from  clergy. 

Yet  if  A.  be  indicted  of  larciny  in  the  county  of  Z).  and  the  jury 
find  the  value  to  be  only  twelve-pence,  he  shall  only  have  the  judg- 
ment of  petit  larciny,  and  not  suffer  death,  as  he  should  have  done, 
if  he  had  been  indicted  of  robbery  in  the  county  of  C.  altho  it  appear 
upon  examination  upon  the  trial  in  the  county  of  D.  that  it  was  a 
robbery;  the  like  law  is,  if  it  had  been  a  robbery  in  a  dwelling-house 
wiihin  the  statute  of  23  //.  8.  because  it  can  be  no  more  than  petit 

(ff)  This  statute  was  in  effect  repealed  by  1  E.  6.  cap.  12.  but  is  revived  by  5  ^f  6.  E. 
6,ca/j,  10. 


HISTORIA  PLACITORUM  CORON.^.  536 

larciny  in  the  county  of  Z>.  it  being  found  but  of  the  vakie  of  twelve- 
pence,  and  accordingly  resolved  by  the  opinion  of  all  the  justices, 
31  Eliz.  Moore,  n.  139.  pag.  550.  for  the  statute  of  25  H.  8.  extended 
to  oust  them  of  clergy,  wliere  clergy  is  demandable;  but  the 
jury  finding  the  value  to  be  but  twelve-pence,  or  under,  no  [  537  ] 
clergy  is  demandable,  because  petit  larciny,  but  the  party  is 
to  be  whipt  only. 

It  hath  been  before  observed  cap.  44.  that  upon  the  statute  of  29. 
'  Eiiz.  cap.  15..tho  ^.  and  B.  be  both  present  and  consenting  to  the 
breaking  and'entering  of  a  house  to  rob,  and  „^.  only  enters  into  the 
house,  and  B.  stands  by,  ^.  shall  be  ousted  of  his  clergy,  but  B. 
shall  have  his  clergy,(A)  because  ..^.  only  entered  the  house,  and  the 
words  of  the  statute  extend  only  to  him  that  actually  enters  the  house; 
yet  if./?,  and  B.  be  present,  and  consenting  to  a  robbery  in  or  near 
the  highway,  or  to  a  burglary,  tho  ^d.  only  actually  commits  the  rob- 
bery, or  actually  breaks  and  enters  the  house,  and  B.  perchance  be 
watching  at  another  place  near,  or  be  about  a  robbery  hard  by, 
which  he  effects  not,  yet  they  are  both  robbers  or  burglars,  and  both 
shall  be  ousted  of  their  clergy,  as  in  Pudsei/'s  case:  and  the  reason  of 
the  difference  is,  because  in  this  case  both  are  robbers  and  burglars, 
but  in  the  former  case  both  steal  not  in  the  house,  but  only  ^.  and 
that  statute  binds  up  the  exclusion  of  the  clergy  to  stealing  in  the 
house._ 

Anno.  1672.  at  Newgate,  Hyde  and  A.  B.  C.  and  D.  conclude  to 
ride  out  to  rob,  and  accordingly  they  rode  out;  but  at  Hounslow  D. 
parted  from  the  company,  and  rode  away  to  Colbrook;  Hyde,  Jl.  B. 
gind  C.  rode  towards  £^// a ?72,  and  about  three  miles  from  Hounslow, 
Hyde,  A.  and  B.  assulted  a  man;  but  before  he  was  robbed  C.  see- 
ing another  man  coming  at  a  distance,  before  the  assault,  rode  up 
to  him  about  a  bow-shot  or  more  from  the  rest,  intending  either  to 
rob  him,  or  to  prevent  his  coming  to  assist,  and  in  his  absence  Hyde, 
Jl.  and  B.  robbed  the  first  man  of  divers  silk  stockings,  and  then  rode 
back  to  C.  and  they  all  went  to  Londo7i,and  there  divided  the  spoil  : 
it  was  ruled  upon  good  advice,  1.  That  I),  was  not  guilty  of  the  rob- 
bery, tho  he  rode  out  with  them  upon  the  same  design,  because  he 
left  them  at  Hoiinsloiu,  and  fell  not  in  with  them,  it  may  be  he 
repented  of  the  design,  but  at  least  he  pursued  it  not.  2.  That  C.  tho 
he  was  not  actually  present  at  the  robbery,  nor,  as  I  remember,  at 
the  assault,  but  rode  back  to  secure  his  company,  was  guilty 
as  well  as  Hyde,  A.  and  B.  and  thereupon  C.  as  well  as  [  538  ] 
Hyde,  J2.  and  B.  had  judgment  of  death,  and  was  excluded 
of  clergy,  the  indictment  being  for  robbery  on  the  highway,  accord- 
ing to  the  resolution  in  Pndsey^s  case,  for  they  were  all  robbers  on 
the  highway. 

(h)  But  now  by  llie  statute  of  3  ^  4   W.  S^  M.  cap.  9.  he  would  not  have  his  clergy,  iqt 
hy  that  statute  clergy  is  taken  away  from  all  aiders,  abetters,  or  astisters,  '  . 


53S  HISTORIA  PLACITORUM  CORONiE. 


CHAPTER  XLVII. 

CONCERNING  RESTITUTION  OF  GOODS  STOLEN,  AND  THE  CONFIS<fATION 
OF  GOODS  OMITTED  IN  THE  INDICTMENT  OR  APPEAL, 

Altho  this  title  Tnay  seem  to  come  more  properly  to  be  examined, 
when  we  come  to  consider  of  the  proceedings  and  judgment  in  crimi- 
nal causes,  yet  in  as  much  as  it  properly  relates  to  larciny  and  rob- 
bery of  goods,  it  will  not  be  amiss  to  take  it  up  here  as  an  appendix 
to  the  four  former  chapters  touching  larciny  and  robbery. 

There  are  three  means  of  restitution  of  goods  for  the  party,  from 
whom  they  were  stolen,  viz.  1.  By  appeal  of  robbery  or  larciiiy,[l] 
3.  By  the  statute  of  21  H.  8.  cap.  11. [2]  And  3.  By  course  of  com- 
mon law. 

I.  Upon  an  appeal  of  robbery  or  larciny,  if  the  party  were  convict 
thereupon,  restitution  of  the  goods  contained  in  the  appeal  was  to  be 
made  to  the  appellant,  for  it  is  one  of  the  ends  of  that  suit. 

And  hence  it  is,  that  if  in  an  appeal  of  felony  or  robbery  the  appel- 
lant omit  any  of  the  goods  stolen  from  him,  they  are  forfeit,  and  con- 
fiscate to  the  king,  45  E.  3.  Cor  on.  100. 

And  so  it  is,  if  he  brings  an  appeal  of  robbery  or  larciny, 
r  539]  and  it  appears  upon  the  trial,  that  indeed  the  goods  were 
the  plaintiff's;  but  yet  the  appellee  came  to  the  goods  not 
by  felony,  but  by  finding  or  bailment  or  the  like  without  felony,  the 
plaintiff  forfeits  these  goods  to  the  king  for  his  false  appeal.  3  E.  3. 
Coron.  367. 

But  if  the  defendant  in  the  appeal  be  convicted,  he  shall  not  only- 
have  judgment  of  death,  but  the  plaintiff  shall  have  a  restitution  of 
his  goods. 

If./?,  steals  the  goods  of  B.  C.  and  D.  severally,  and  B.  brings  his 
appeal,  and  convicts  the  offender,  yet  before  judgment  C.  and  D. 
may  pursue  their  appeals,  and  he  shall  be  arraigned  also  upon  their 
several  appeals.  4  i?.  4.  11  «. 

So  if  judgment  be  given  against  Ji.  upon  the  appeal  of  B.  yet  if 
the  appeal  of  C.  were  begun  before  the  attainder,  ,^.  shall  be 
arraigned  upon  the  appeal  of  C.  because  he  is  to  have  restitution  of 
his  goods  thereby,  yet  by  the  book  of  7  H.  4.  31.  and  12  E.  2. 
Coron.  379.  it  seems,  that  the  second  trial  at  the  suit  of  C.  is  but  in 
nature  of  an  iuqncst  of  office  to  entitle  him  to  the  restitution  of  his 
goods,  because  as  to  the  judgment  of  life  he  is  already  in  law  a  dead 
person,  and  the  book  of  4  E.  4.  II. (a)  speaks  not  in  case  of  a  judg- 
ment, but  only  of  a  conviction  or  finding  guilty ;  qicsere,  vide  44 

(«)  That  case  was  of  a  second  appeal  brought  before  the  party  had  pleaded  to  the 
first. 

[1]  This  no  longer  exists.    Sec  59  Geo.  III.  c.  4G. 

[2]  Now  aincniled  by  7  «fc  8  Geo.  1V.C.2U.  §  58.;  andsco  7  Car.  Sf  P.  481.  640. 


HISTORIA  PLACITORUM  CORONA.  539 

E.  3.  44.  yet  vide  Slamf.  p.  66  and  107.  it  seems  the  attainder  is  no 
bar  to  C. 

But  certain  it  is,  that  if  ./?.  be  attaint  at  the  suit  of  B.  and  then 
and  not  before  C.  commences  his  appeal,  Ji.  shall  not  be  arraigned 
thereupon  ;  but  if  he  be  afterwards  pardoned,  then  he  shall  be 
arraigned  at  the  suit  of  C.  commenced  after  the  attainder,  6  H.  4. 
6.  h.  10  H.  4.  Coron.  227.  But  if  the  attainder  were  at  the  king's 
suit  for  that  very  felony,  for  which  C.  brought  his  appeal  after  the 
attainder,  then  it  seems  he  shall  not  be  put  to  answe?  it.  Stamf. 
P.  C.p.  106. 

Now  touching  restitutions  upon  appeals,  Stamf.  Lib.  III.  cap.  10. 
fol.  165.  hath  given  us  a  full  account,  I  shall  follow  his  method  partly 
and  summarily.  1.  Where  the  plaintiff  shall  have  restitution.  2. 
When.     3.  Of  what  things. 

1.  As  to  the  first,  where  and  in  what  cases  the  party 
appellant  shall  have  restitution.  [  540  ] 

1.  It  must  be  upon  fresh  suit,  and  tho  antiently  the  law 

was  strict  herein  as  to  the  time  and  manner  of  the  pursuit  and  appre- 
hending of  the  felon,  yet  the  law  is  now  more  liberal. 

If  the  felon  be  taken  by  any  others,  as  by  the  sheriff,  yet  if  the 
party  robbed  come  within  a  year  after,  and  give  notice  of  the  felony, 
and  enter  his  appeal,  this  is  a  fresh  suit,  if  he  used  his  diligence 
shortly  after  the  felony  to  have  taken  him.    7  H.  4.  43.  b. 

2.  The  appellant  must  proceed  with  his  appeal  to  convict  the 
felon ;  but  yet  in  cases  of  impossibility  of  such  conviction  it  is 
sufficient  that  he  used  his  endeavour;  as  if  he  takes  the  felon,  and 
imprison  him,  and  he  dies  within  the  year,  and  before  the  appeal 
commenced ;  so  if  the  party  abjure  or  break  prison  after  he  is 
taken,  12  E.  2.  Coron.  380.  so  as  the  appeal  be  commenced  within 
the  year  and  day,  and  that  he  made  fresh  suit,  26  ^ssiz.  32.  or  if 
he  challenge  peremptorily  above  the  number  appointed  by  law, 
stands  mute  of  malice,  or  hath  his  clergy, (6)  8  H.  4.  1.  or  be 
outlawed. 

2.  As  to  the  second,  when  he  shall  have  restitution. 

He  shall  have  restitution  after  judgment  against  the  appellee,  and 
before  execution  made  or  prayed.   21  E.  A.  73.  b. 

He  shall  have  restitution  after  conviction  of  the  principal,  and 
before  conviction  of  the  accessary,  and  after  conviction  of  one  of  the 
principals  before  conviction  of  the  other,  or  tho  the  other  be  acquitted 
upon  his  appeal.    21  E.  4.  16  a.  10  H.  4.  Coron.  466. 

But  if  A.  steal  severally  the  goods  of  B.  and  C.  and  he  be  con- 
vict upon  the  appeal  of  B.  yet  C.  shall  not  have  restitution  till  he 
be  convict  at  his  suit  also,  4  E.  4.  11.  supra,  altho  the  felon  be 
convict  at  the  suit  of  the  appellant,  yet  he  is  not  to  have  resti- 
tution till  the  fresh  suit  be  inquired,  which  is  to  be  done  by  the 
same  jury  that  convicts  the  felon,  if  he  plead  to  inquest, 
but  if  he  confess  the  felony,  or  stand  mute,  it  shall  be  in-  [  541  ~\ 

(6)  4  E.  4.  19.  b. 


541  HISTORIA  PLACITORUM  CORONA. 

quired  by  inquest  taken  ex  officio  by  the  judge.    1  H.  4.  5.  a.  2.  B:  3. 
12.   3  H.  7.  12.  b. 

3.  Of  what  things  he  is  to  have  restitution. 

If  a  felon  waive  the  goods  stolen  without  any  pursuit  after  him, 
those  goods  are  not  in  law  bona  waiviata,  nor  forfeit  to  the  king  or 
lord  of  a  franchise;  but  if  he  waive  them  upon  a  pursuit  of  him, 
then  they  are  bonci,  icaiviata,  and  forfeit  to  the  king  or  lord  of  the 
Hberty ;  quod  vide  5  Co.  Rep.  109.  a.  Foxley^s  case. 

And  this  forfeiture  is  not  like  a  stray,  where  tho  the  lord  may 
seize,  yet  the  party,  who  is  the  owner,  may  retake  them  within  the 
year  and  day,  but  here  the  true  owner  cannot  seize  his  own  goods, 
tho  upon  fresh  suit  within  the  year  and  day.  8  ^.  3.  11.  a.  Jivoiory 
151.  3  E.  3.  Cor.  162. 

But  yet  this  is  not  an  absolute  loss  of  the  owner's  goods,  but 
rather  an  expedient  settled  by  law  to  drive  the  owner  to  convict 
the  felon  by  prosecuting  his  appeal,  and  therefore  if  he  make  fresh 
suit,  and  prosecute  his  appeal,  and  the  felon  be  thereupon  convict 
and  attaint,  and  the  fresh  suit  be  inquired  and  found  by  verdict  or 
inquest  of  office,  he  shall  have  restitution  of  the  goods  so  waived. 
5  Co.  Rep.  109.  Fox  ley's  case,  3  E.  3.  Coron.  162. 

Bnt  more  of  restitution  under  the  next  general,  for  it  is  regularly 
true,  that  of  what  things  the  owner  shall  have  restitution  upon  the 
statute  of  21  H.  8.  he  should  have  restitution  upon  a  conviction  in 
an  appeal  at  common  law,  and  e  converso,  so  that  what  is  said  upon 
the  statute,  is  applicable  to  restitution  upon  an  appeal. 
,  II.  By  the  statute  of  21  H.  8.  cap.  11. [3]  it  is  enacted,  "That  if 
any  person  do  rob  or  take  away  the  goods  of  any  of  the  king's 
subjects  within  this  realm,  and  be  indicted,  arraigned,  and  found 
guilty  thereof,  or  otherwise  attainted  by  reason  of  the  evidence  of 
the  party  so  robbed,  or  owner  of  the  said  money,  goods  or  chattels, 
or  any  other  by  their  procurement,  that  then  the  party  so  robbed,  or 
owner,  shall  be  restored  to  his  money,  goods  or  chattels,  and  the  jus* 
tices,  before  whom  such  person  shall  be  so  attainted,  or 
[^5423  found  guilty  by  reason  of  the  evidence  of  the  party  so 
robbed,  or  owner,  or  by  any  other  by  their  procurement, 
have  power  to  reward  writs  of  restitution  for  the  said  money  or 
goods,  or  chattels  in  like  manner,  as  tho  any  such  felon  or  felons 
were  attainted  at  the  suit  of  the  party  in  an  appeal. 

This  statute  introduced  a  new  law  for  restitution:  for  before  this 
statute  there  was  no  restitution  upon  an  indictment,  but  only  upon 
an  appeal.  22  E.  3.  Coroii.  460.  Samf.  P.  C.p.  167.  a. 

Tho  the  statute  speak  of  the  king's  subjects,  it  extends  to  aliens 
robbed;  for  tho  they  are  not  the  king's  natiiral-born  subjects,  they 
are  the  king's  subjects,  when  in  England,  by  local  allegiance. 

If  the  servant  be  robbed  of  -the  master's  money,  and  the  mas- 
ter, or  his  servant  by  his  procurement  give  evidence  and  convict 

[3]  Sec  ante,  note  (2)  p.  538. 


HISTORIA  PLACITORUM  CORONA.  542 

the  felon,  the  master  shall  have  a  writ  of  restitution,  if  it  appear 
upon  the  indictment  and  evidence  it  was  the  master's  money,  for 
the  statute  gives  restitution  to  the  party  robbed  or  owner.  Stamf, 
P.  C.p.  167. 

If  r.'l.  be  robbed  by  B.  and  C.  and  B.  only  is  convict  of  the  rob- 
bery by  the  evidence  o{  ^.  he  shall  have  restitution,  for  so  he  should 
have  had  in  case  of  an  appeal. 

If  t/1.  be  robbed  of  an  ox  by  B.  who  sells  him  to  C.  who  keeps 
the  money  in  his  liands,  and  after  kills  the  ox,  and  sells  the  flesh,  or 
if  the  money  be  seized  in  the  hands  of  the  thief,  t^.  may,  if  he 
pleases,  have  a  writ  of  restitution  for  the  money.  Noy^s  reports, 
Harrises  case.(c) 

So  if  money  be  stolen,  and  the  thief  taken,  and  the  money  seized, 
he  shall  have  restitution  of  the  money. 

The  testator  is  robbed,  the  thief  is  convict  upon  the  procurement 
of  the  executor,  he  shall  have  restitution.  3  Eliz.  Benl.  S7.  Dy,  201. 
6  Co.  Rep.  80. 

It  hath  been  a  great  question,  if  goods  be  stolen,  and  by  the  thief 
sold  in  a  market-overt,  whether  the  thief  being  convicted  upon  the  evi- 
dence of  the  party  robbed,  he  shall  have  restitution  upon  this  statute 
of  the  thing  sold  or  not,  the  buyer  not  being  privy  to  the  felony: 
those  that  held  he  should  not,  ground  themselves  upon  the 
book  of  12  H.  8.  10.  Mr.  DaUon's  opinion,  cap.  111.  p.  [543] 
229. (c^)  upon  the  resolution  in  the  case  o{  market-overt,  5  Co. 
Rep.  S3,  b.  which  was  upon  occasion  of  a  writ  of  restitution,(e)  where 
it  is  held,  that  the  sale  in  market-overt  is  a  bar  to  the  restitution; 
and  upon  the  statute  of  31  Eliz.  cap.  12.  where  it  is  specially  pro- 
vided, that  notwithstanding  a  sale  of  a  horse  in  market-overt  the 
owner  may  take  him  within  six  months  after  the  felony  upon  proof 
of  his  property,  which  evidenceth,  that  after  the  six  months  he  shall 
not  have  restitution  ;  and  of  this  opinion  wais  //yr/e  just  ice  (/)  at  the 
sessions  held  after  Trin.  13.  Car.  Brown ']\\s\\cq  dissentienle. 

But  it  seems  he  shall  have  restitution  upon  this  statiUe,  notwith- 
standing the  sale  in  market-overt  of  the  goods  stolen,  and  as  to  the 
authorities,  the  12  H.  8.  10.  was  before  the  statute  of  21  //.  8.  and 
Mr.  Daltoii^s  opinion  seems  to  be  grounded  upon  it;  the  case  of 
market-overt,  5  Co.  Rep.  it  is  true  seems  to  be  against  the  restitu- 
tion, tho  the  case  fell  off  upon  this,  that  the  scrivener's  shop  was  no 
market-overt  by  the  custom  oi  London. 

As  to  the  statute  of  31  Eliz.  to  which  I  may  add  also  the  statute 
of  1  Jac.  cap.  21.  that  enacts,  "No  sale  of  stolen  goods  in  London, 
fVestminsler,  or  Southwark,  or  within  two  miles  to  a  broker,  shall 
make  any  change  or  alteration  of  the  property  or  interest:"  These 
statutes  make  nothing  as  to  the  case  in  question,  for  without  question 
the  sale  in  market-overt  changeth  the  property  in  those  ca'ses,  wherein 
these  and  the  like  statutes  have  not  enacted  the  contrary,  and  there- 
fore the  party  cannot  take  them  again  from  the  buyer,  unless  in  case 
of  brokers  and  stolen  hoxses,  ut  supra :  but  this  comes  not  to  the 

(c)  Noy  128.        {d)  New  Edit.  cap.  164. p.  543.        (e)  1  And.  344.        (/)  Kel.  35. 


543  HISTORIA  PLACITORUM  CORONiE. 

question  in  hand,  for  here  the  act  of  parHament  gives  the  restitution, 
and  that  only  where  the  felon  is  convicted;  and  this  restitution  is  not 
prevented  by  the  sale  in  market-overt.  1.  This  act  was  made  to 
encourage  persons  robbed  to  pursue  malefactors,  and  therefore  they 

have  an  assurance  of  restitution,  and  it  would  be  small  en- 
[  544  ]]  couragement  if  a  thief  by  sale  in  market-overt,  which  is 

every  day  in  almost  every  shop  in  London,  should  elude  it. 

2.  It  were  against  the  common  good,  and  would  encourage  offend- 
ers to  the  common  detriment,  if  this  sale  should  conclude  the  owner. 

3.  The  man  that  is  robbed,  is  robbed  against  his  will,  and  cannot 
help  it ;  but  the  buyer  of  stolen  goods  may  chuse  whether  he  will 
buy,  or  if  he  buy,  may  yet  refuse  to  buy,  unless  well  secured  of  the 
property  of  the  goods,  or  knowing  the  owner. 

And  if  it  be  said,  that  the  restitution  shall  be,  as  in  case  of  an  ap- 
peal, and  a  sale  in  market-overt  had  barred  a  restitution  in  an  appeal. 

I  answer,  1.  That  it  is  but  gratis  dictum,  that  a  sale  in  a  market- 
overt  had  barred  restitution  in  an  appeal,  for  there  is  no  authority 
for  it,  but  the  only  book,  that  I  know  in  the  case,  is  to  the  contrary, 
viz.  2  Co.  Inst  it.  p.  714.  If  ^.  commit  a  robbery,  the  king's  officer 
seizeth  the  goods  stolen,  and  sells  them  in  market-overt,  tlie  party 
robbed  convicteth  ^.  upon  his  appeal, he  shall  have  restitution  notwith- 
standing such  sale,  if  he  made  fresh  suit.  2.  But  suppose  the  appel- 
lant should  not  have  restitution,  yet  that  restrains  not  restitution  in 
case  of  the  statute  of  21  i/.  8.  for  the  words  ./?.s  though  he  had  beefi 
attaint  in  an  appeal  are  not  restrictive,  but  relative  only  to  the  man- 
ner of  the  writ  of  restitution,  which  shall  be  such  as  in  an  appeal. 

For  authorities,  1.  It  hath  been  the  constant  practice  at  Newgate, 
that  sale  in  market-overt  hath  not  been  allowed  against  this  writ  of 
restitution,  and  this  Mr.  Lee,  the  secondary  there  for  above  thirty 
years,  hath  attested  openly  in  the  court  there  oftentimes  before  my- 
self, and  divers  others:(g-)  again,  2  Co.  Instit.  p.  714.  lord  Coke's 
opinion  was  in  these  words,  So  that  in  this  case  also, {viz.  upon  the 
statute  of  21  H.  8.  cap.  11.)  the  parly  robbed,  or  owner,  shall  have 
restitution  notwithstanding  any  sale  in  market-overt,  ^nA  with  this 
agreed  myself  and  justice  Twisden  upon  consideration  of  this  statute. 
Upon  this  statute  of  21  H.  S.  if  the  offender  be  convict 
[  545  ]  upon  the  evidence  of  the  party  robbed,  or  owner,  he  shall 
have  restitution,  tho  there  were  no  fresh  suit,  or  any  inquiry 
by  inquest  tonchiiig  the  same,  and  this  is  constant  practice,  tho  in 
case  of  an  appeal  it  be  otherwise. 

\i  Jl.  be  robbed  by  B.  of  a  silver  cup,  a  piece  of  cloth,  and  other 
things,  and  Ji.  prefers  an  indictment  only  for  one  of  them,  as  namely 
the  clolli,  and  convict  the  felon,  he  shall  have  restitution  of  no  more 
than  what  is  contained  in  the  indictment,  and  the  goods  omitted  are 
confiscate  to'  the  king,  as  in  case  of  goods  omitted  in  an  appeal.  44  E. 
3.  44  (A)  tamen  qnrcre,  for  it  is  not  really  the  party's  suit.  Vide 
Dult.  cap.  IW.p.  2iiS.(/) 

(g)  See  Kel.  48. 

(A)  Tliis  is  more  directly  proved  Corone  100.  (i)  New  Edit,  ubi  tvpra. 


HISTORIA  PLACITORUM  CORONiE.  545 

If./?,  have  his  goods  stolen  by  B.  and  Jl.  prefers  a  bill  of  indict- 
ment, which  is  found,  whereupon  B.  flies  and  is  outlawed,  ^.  shall 
have  restitution,  for  he  gave  evidence  upon  the  indictment,  which, 
tho  it  be  not  a  conviction,  is  the  ground  of  the  outlawry,  which  is  an 
attainder.     Dalt.  uhi  svpra. 

A.  and  B.  have  their  several  goods  stolen  by  C.  Ji.  prefers  his  bill 
of  indictment  for  his  goods,  C  is  thereupon  convicted,  notwithstand- 
ing that  conviction  B.  may  prefer  his  bill,  and  C  shall  be  thereupon 
arraigned  and  tried,  to  the  end  that  B.  may  have  his  restitution, 
which  he  could  not  have  by  the  conviction  upon  the  indictment  oi  Ji. 
because  a  distinct  felony,  tho  most  usually  at  the  same  sessions  the 
several  indictments  against  the  same  person  are  tried  by  the  same 
\\\xs\  vide  4  ^.  4.  11.  Shimf.  P.  C.foL  167.  L 

But  suppose  that  C.  be  attaint  on  the  indictment  preferred  by  j2. 
arak  reprieved  till  another  sessions,  and  then  B.  prefer  a  bill  of  indict- 
ment for  another  robbery  upon  him  by  C.  in  this  case  C.  may  plead 
to  the  country  if  he  please,  and  upon  conviction  B.  shall  have  restitu- 
tion, for  the  court  is  not  bound  to  take  notice  at  another  sessions, 
that  he  is  attaint,  but  he  m^  if  he  please  plead  aiitrefoits  attaint, 
and  refuse  to  answer,  and  then  by  the  book  of  44  E.  3.  44.  in  case  of 
an  appeal  he  should  have  no  restitution,  but  his  goods  should 
be  confiscate  to  the  king,  but  I  think  that  to  serve  the  statute  [  546  1 
of  21  H.  8.  as  to  the  point  of  restitution  the  court  may  and 
ill  reason  ought  to  inquire  by  an  inquest  of  office  touching  the  rob- 
bery of  B.  and  being  ascertained  of  it  thereby  to  grant  restitution, 
tho  they  ought  to  give  no  new  judgment  of  death  upon  such  inquest, 
at  least,  unless  the  prisoner  had  pleaded  to  the  indictment  not  guilty, 
and  put  himself  upon  the  country:  vide  4  E.  4.  11.  Bait.  cajj.  111. 
p.  714,  115. ,{k)  Sta?7if.  P.  C.  p.  107. 

And  thus  far  of  restitution  by  the  statute  of  21  H.  8. 

III.  Restitution  by  course  of  law  is  either  by  taking  his  goods,  or 
by  action. [4] 

1.  As  to  retaking  of  goods  stolen:  if  A.  steal  the  goods  of  ^.  and 

(k)  New  Edit.  cap.  164.  p.  543. 

[4]  In  a  recent  case  it  was  held,  that  if  goods  have  been  stolen,  or  there  be  reasonable 
ground  for  presuming  that  fact,  the  owner  cannot  maintain  trover  against  tlie  person 
who  bought  them  of  the  supposed  thief,  without  he  has  done  every  tiling  in  his  power  to 
bring  the  thief  to  justice.     Gemson  v.  Woodfall,  2  C.  Sf  P.  41. 

The  owner  can  have  no  civil  redress  against  the  felon  himself  before  conviction,  as  it 
would  be  merging  the  felony  in  the  civil  action;  and  if  he  has  no  redress  against  the 
felon  himself  he  has  none  against  persons  who  derive  their  title  through  him.  Crosby  v. 
Long,  12  East's  K.  40'J.  And  if  the  felon  be  paidoncd  after  conviction,  or  even  if  he  be 
hovajide  acquitted,  the  owner  may  bring  an  action  against  him  in  trespass,  or  trover  to 
recover  dam.iges;  for  the  cFvil  right  was  not  merged  in  the  public  injury,  but  only  sus- 
pended till  the  prosecution  was  concluded.     Id. 

If  the  thing  s^tolcn  be  converted  inio  money,  the  owner  may,  after  having  done  all  he 
can  to  bring  the  offender  to  justice,  have  the  produce  instead  of  the  specific  chattel. 
5  Rip.  10;).  Keilw.  49.  See,  aUo,  Horwood  v.  Smith,  2  T.  H.  750,  and  Bishop  v.  Shel- 
leto,  2  It.  Sf  Aid.  329  (n.) 

'I'here  is  now  a  statute  in  England  on  the  subject  of  the  restitution  of  stolen  goods, 
entitled  "  An  act  to  encourage  tiie  prosecution  of  offenders."  7  &,  8  Geo.  IV.  c.  2d, 
VOL.  I. — 48 


546  HISTORIA  PLACITORUM  CORONA. 

B.  take  his  goods  of  ./^.  again  to  the  intent  to  favour  him  or  maintain 
him,  this  is  unlawful  and  punishable  by  fine  and  imprisonment, (/) 
but  if  he  take  them  again  without  any  such  intent,  it  is  no  offense. 
Mich.  16  Jac.  B.  R.  Higgins  and  Jindrews,{rn)  but  justifiable. 

But  after  the  felon  is  convicted,  it  can  be  no  colour  of  crime  to  take 
his  goods  again,  where  he  finds  them,  because  he  hath  pursued  the 
law  upon  him,  and  may  have  his  writ  of  restitution,  if  he  please. 

2.  By  course  of  common  law:  A.  steals  the  goods  of  B.  viz.  fifty 
pounds  in  money,  A.  is  convicted,  and  hath  his  clergy  upon  the  pro- 
secution of  B.  B.  brings  a  trover  and  conversion  for  this  fifty  pounds, 
and  upon  not  guilty  pleaded  this  special  matter  is  found,  and  adjudged 
for  the  plaintiff,  because  now  the  party  hath  prosecuted  the  law 
against  him,  and  no  mischief  to  the  commonwealth;  but  it  was  held, 
that  if  a  man  feloniously  steal  goods,  and  before  prosecution  by  in- 
dictment the  party  robbed  brings  trover.,  it  lies  not,  for  so  felo^es 
should  be  healed.  M.  1652.  B.  R.  Dnwkes  and  Coverieigh;{n)  vide 
accordant  Noyes  reports,(o)  Markham  and  Cob;  but  if  the 
[547  J  plaintiff  had  not  given  evidence  upon  the  conviction,  it  was 
held,  that  the  action  lay  not,  b#t  the  goods  were  confiscate 
to  the  king,  and  for  want  of  that  averment  in  the  case  of  Markham, 
judgment  was  given  for  the  defendant  in  trespass. 


CHAPTER  XLVIIL 

OF    BURGLARY,   THE    KINDS,   AND    PUNJS5MENT. 

I  COME  to  those  crimes  that  specially  concern  the  habitation  of  a  man, 
to  which  the  laws  of  this  kingdom  have  a  special  respect,  because 
every  man  by  the  law  hath  a  special  protection  in  reference  to  his 
house  and  d\velling.(fl) 

And  that  is  the  reason,  that  a  man  may  assemble  people  together 
for  the  safeguard  of  his  house,  which  he  could  not  do  in  relation  to 
travel,  or  a  journey.  21  H.  7.  39.  a. 

And  upon  the  same  reason  it  is,  that  not  only  by  the  statute  of  24 
H.  8.  cap.  5.  but  even  by  the  common  law,  if  any  come  to  commit 
a  felony  upon  me  in  my  house,  and  I  kill  him,  it  is  no  felony,  nor 
inducelh  any  forfeiture;  quod  vide  supra,  p.  487.  vide  Sir  Henry 

(I)  And  so  seems  the  practice  of  advertising  a  reward  for  brinjring-  goods  stolen,  and 
no  questions  asked,  which  1  have  lieard  lord  chancellor  Macclisjield  declare  to  be  highly 
criminal,  as  being  a  sort  of  compounding  of  felony,  for  the  goods  by  that  means  return- 
ing to  the  right  owner,  a  stop  is  put  to  the  inquiry  and  prosecution  of  the  felon,  and 
theneby  great  encouragement  is  given  to  the  commission  of  such  offences.  See  postea, 
cap.  56. 

(m)  2  Rol.  Rep.  55.  (n)  Style  346.  (o)  Noy  82. 

(a)  That  this  was  the  notion  among  the  Romans  also  appears  from  Cicero  in  oratione 
pro  domo,  cap.  41.  Quid  cnini  sanctius,  quid  omni  religione  miinitius,  qunm  domus  imiiis- 
cujusque  civium?  hie  ara  sunt,  hie  soci,—hoc  perfugiwn  est  ita  sanctum  omnibus,  ut  inde 
abripi  neminem  fas  sit. 


HISTORIA  PLACITORUM  CORONA.  547 

Spelman  Gloss,  tit.  Hamsecken,  ^-  ibidem  tit.  Biirglaria,  whereby 
it  appears,  that  by  the  antient  laws  of  Caniitiis,{b)  and  oi  H.  l.(c) 
it  was  punished  with  death. 

The  common  genus  of  offenses  that  comes  under  the  name  of 
Hamsecken,  is  that  which  is  usually  called  house-breaking,  which 
sometimes  comes  under  the  common  appellation  of  burqla7-y, 
whether  committed  in  the  day  or  night  to  the  intent  to  com-  [  548  ~\ 
mit  felony,  so  that  house-breaking  of  this  kind  is  of  two 
natures. 

1.  That  which  in  a  vulgar  and  improper  acceptation  is  sometimes 
called  burglary.    And, 

2.  That  which  in  a  strict  and  legal  acceptation  is  so  called. 

I.  As  to  the  former  of  these,  kam,sacken,  house-breaking,  or  burg- 
lary in  a  vulgar  acceptation  is  of  several  kinds. 

1.  Robbing  any  person  by  day  or  night  in  his  dwelling-house,  the 
dweller,  his  wife,  children,  or  serv-ants  being  in  the  house, and  put  in 
fear;  this  requires  that  there  be  something  taken,  but  it  requires  not 
an  actual  breach  of  the  house;  but  it  is  all  one,  whether  he  actually 
breaks  the  house,  or  enters  per  ostia  aperta,  (or  it  is  in  truth  robbery 
either  way,  and  from  this  offense  clergy  is  taken  away  by  the  statute 
of  23  H.  8.  cap.  1.  and  25  H.  S.  cap.  3.  from  the  principal,  and  by  the 
statute  of  4  4*  5  P.  4'  M  cap.  4.  from  the  accessary. 

2.  Robbing  a  person  by  day  or  night  in  his  dwelling-house,  the 
dweller,  his  wife  or  children  being  in  the  house,  and  not  put  in  fear; 
this  requires,  1.  An  actual  breaking  of  the  house.  2.  An  actual  taking 
of  something,  but  the  persons  need  not  ^e  put  in  fear;  and  by  the 
statute  of  5  (^'  6  E.  6.  cap.  9.  clergy  is  in  this  case  taken  from  the 
principal,  that  enters  the  house;  and  by  the  statute  of  4  4'  5  F.  4*  M. 
cap.  4.  from  the  accessary  before. 

3.  Robbing  a  dwelling-house  by  day  or  night,  and  taking  away 
goods,  none  being  in  the  house;  this  requires  an  actual  breaking,  and 
an  actual  taking  of  something,  and  without  the  latter  it  is  not  felony, 
but  if  accompanied  with  both,  and  the  taking  of  goods  be  of  the  value 
of  five  shillings,  it  is  excluded  from  clergy  by  39  Eliz.  cap.  15. 

4.  A  breaking  of  the  house  in  the  day  or  night  to  the  intent  to 
steal  or  commit  a  felony,[l]  any  person  being  in  the  house,  and  put 

(h)  I.  61.  reckons  irruptio  in  d'omum  among  the  scelera  inexpialilia. 
(c)  I.  80.  See  Wilk.  Leg.  Anglo-Sax.  p.  273. 

[1]  Whoever  in  the  night  time  breaks  and  enters  the  dwelling-house  of  another,  with 
intent  to  commit  murder,  rape,  arson,  robbery,  or  larceny,  within  the  same;  or  by  day 
or  night  enters  the  same  witli  such  intent,  and  in  the  niglit,  breaks  with  such  intent  any 
apartment  thereof;  or  in  the  night  enters  the  same  with  such  intent,  and  in  the  night 
breaks  out  of  such  dwelling-house,  or  being  an  inmate  therein,  in  the  night  breaks  and 
enters,  with  such  intent,  any  apartment  thereof,  without  any  right  or  authority  to  enter 
the  same,  at  the  time,  is  guilty  of  burglary.    Mass.  Penal  Code.   Tit.  Biirglarij. 

According  to  the  law  of  England,  there  are  six  ways  of  committing  Burglary: 
^  1.  By  breaking  and  entry  from  without,  with  intent,  &c. 

"Si  By  entry  from  without,  &,c.  and  breaking  some  apartment  within,  with  intent,  &c. 

3.  By  breaking  and  entry  of  an  inner  apartment,  by  an  inmate,  with  intent,  «fcc. 


548  HISTORIA  PLACITORUM  CORONA. 

in  fear,  tho  nothing  be  actually  taken,  this  is  burglary  by  the  common 
law,  if  it  is  in  the  night,  and  felony  by  the  statute  of  1  ^.  6  cap.  12. 
tho  in  the  day,  and  is  excluded  from  clergy  by  the  statute  of  1  E.  6. 
whether  by  day  or  by  night,  but  then  it  requires,  1.  An  actual  break- 
ing of  the  house,  and  not  an  entry /?er  osl'ia  aperta.  2.  An 
[549]  entry  with  intent  to  commit  a  felony,  and  so  laid  in  the  in- 
dictment.    PouKer^s  case,  11  Co.  Rep.  31.  b.[2'] 

3.  A  putting  in  fear,  but  accessaries  have  clergy. [3] 

II.  Legal  or  proper  burglary  is  of  two  kinds,  viz.  1.  Complicated 
and  mixed  with  another  felony,  as  breaking  the  house,  and  stealing 
goods,  either  with  putting  in  fear  or  without  putting  in  fear,  some- 
body in  the  house,  or  nobody  in  the  house,  which  requires,  1.  That 
it  be  done  in  the  night.     2.  That  there  be  an  actual  breaking. 

2.  Simple  burglary,  and  that  either,  1.  With  putting  in  fear,  and 
then  the  principal  is  excluded  of  clergy  by  the  statute  of  1  JS.  6.  and 
also  by  the  statute  of  18  Eliz.  or,  2.  Without  putting  in  fear,  and 
then  he  is  excluded  of  clergy  by  the  statute  of  IS  Eliz. 

And  this  chapter  speaks  only  of  proper  or  legal  burglaries,  of  those 
improper  burglaries  I  have  spoken  before. 

Burglary  is  described  by  Sir  Henri/  Spehnan{e)  to  be  nocturna 
diruptio  alicvjiis  hahiiaculi  vel  ecclesise,  etiam  murorum  porta- 
rumve  civitatis  aut  burgi  ad  fdoniani  perpctrandam. 

My  lord  Coke  P.  C.  cap.  14.  p.  63.  more  fully  describes  it.  "A 
burglar  is  he,  that  in  the  night-time  breaketh  and  entreth  into  a 
mansion-house  of  another  of  intent  to  kill  some  reasonable  creature, 
or  to  commit  some  other  fflony  within  the  same,  whether  his  felo- 
nious intent  he  executed  or  not. 

And  accordingly  the  indictment  runs,  quod  J.  S.  1  die  Julii  anno 
&.C.  in  nocte  ejusdem  diei  vi  &  armis  domum  mansionaleni  A.  B. 

(e)  In  verba  burglaria. 

4.  By  entry,  with  intent,  &c.,  and  breaking  out. 

5.  By  entry  and  actual  commission  of  felony  within,  and  breaking  out. 

6.  By  breaking  and  entry,  and  actual  commission  of  felony  within. 

The  first  three  and  the  sixth  offences  (12  East,  519.)  are  burglary  at  common  law. 
It  is  uncertain  whether  the  fourth  is  burglary  at  common  law  or  not.  Hale  denies  it  to 
be  burglary,  ipage'554.)  where  the  breaking  out  was  with  intent  to  escape  only.  The 
general  doctrine  is,  that  both  the  breaking  and  entry  must  be  with  felonious  intent.  If 
this  case  is  not  an  exception,  (and  we  are  by  no  means  ready  to  conclude  that  it  is,) 
breaking  out,  if  a  breaking  at  all,  at  common  law,  can  be  so  only  when  the  offender 
pursues  his  felonious  intent;  as  when  he  carries  away  something  stolen,  or  pursues  some 
one  with  intent  to  murder,  &c.  But  both  the  fourth  and  filth  are  burglary,  by  statute 
17  Anne,  c.  7.  re-enacted  in  words  a  little  varied  in  7  &  8  Geo.  IV.  c.  29.  s.  11. 

"  If  any  person  sliall  enter  the  dwelling-house  of  another  with  intent  to  commit  felony, 
or  being  in  such  dwelling-house,  shall  commit  any  felony,  and  shall,  in  either  case,  break 
out  of  the  said  dwelling-liouse  in  the  night  time,  snch  person  shall  be  deemed  guilty  of 
burglary."  Such  is  generally  the  state  of  the  law  of  burgl.iry  in  England.  Mass.  Com. 
Rep.  See  Rex  v.  Hanson,  1  Roofs  Rep.  .59.  Tke  Slate  v.  Wi'son,  Coxe^s  N.  J.  Rep.  441. 
Com.  V.  Newell,  1  Mass.  R.  247.  Coin.  v.  Brown.,  3  Rawle  Rep.  207. 

[2]  State  V.  Wilson  Coxa's,  N.  J.  Rep.  441.  Com.  v.  Newell,  7  Mass.  R.  247.  Rex  v. 
Hanson,  1  RooVs  R.  59. 

[3]  As  to  clergy,  see  ante  ch,  44.  .      ' 


HISTORIA  PLACITORUM  CORONA.  549 

felonice  &  burglariter  fregit  &  intravit,  ac  ad  tunc  &  ibidem  unum 
scyphum  argenteuni  &c.  de  bonis  &  catailis  ejnsdeni  Jl.  B.  in  eadem 
doriio  invent'  felonice  &  burglariter  fiiratus  fuit,  cepit  &  asportavit; 
or  if  no  theft  were  actually  committed,  then  ex  intentione  ad  bona 
&  catalla  ejiisdem  A.  B.  in  eadem  dorno  existent'  felonice  &  bur- 
glariter furandiim,  capiendum  &  asportandum,  or  ea  intentione  ad 
ipsum  A.  B.  ibidem  felonice  interficiendiim  contra  pacem  &c. 

And  note,  that  these  several  clauses  in  the  indictment  are  essential 
to  the  constitution  of  burglary,  1.  That  it  be  said  noctanter,  or  in 
nocte  ejusdem  diei(f)  for  if  it  be  in  the  day-time,  it  is  not 
burglary.  2.  That  it  be  said  in  the  indictment  burglariter,  [  550^ 
for  it  is  a  legal  word  of  art,  without  which  burglary  cannot 
be  expressed  with  any  kind  of  other  word  or  other  circumlocution, 
and  therefore,  where  the  indictment  is  burgaliter  instead  of  bur- 
glariter, it  makes  no  indictment  of  burglary,  so  if  it  be  burgenter. 
4  Co.  Rep.  39.  b.{g) 

3.  It  must  be  fregit  4*  intravit,  for  it  is  held,  that  breaking  with- 
out entring,  or  entring  without  breaking  makes  not  burglary,  sed  de 
hoc  infra;  yet  Trin.  5  Jac.  B.  R.  an  indictment,  quod  felonicl  §• 
burglariter  fregit  dom,um  mansionalern,  Sf'C.  was  a  good  indict- 
ment of  burglary,  and  that  the  entry  is  sufficiently  implied,  even  in 
an  indictment,  by  the  words  burglariter  fregit,  h\xi  the  safest  and 
common  way  is  to  say  fregit  S,'  intravit. 

4.  It  must  be  said  domum  niansionalem,  where  burglary  is  com- 
mitted in  a  house,  and  not  generally  domum,  (or  that  is  too  uncertain, 
and  at  large. 

5.  It  must  be  alleged,  that  he  committed  a  felony  in  the  same 
house,  or  that  he  brake  and  entred  the  house  to  the  intent  to  commit 
a  felony,  but  these  things  will  be  fuller  examined,  when  we  come  to 
particulars. 

1.  Therefore  the  time,  wherein  it  must  be  committed  to  make  it 
burglary,  must  be  in  the  night.[4] 

(/)  See  9  Co.  66.  b.  (g)  See  also  5  Co.  121.  b. 


[4]  See  4  Bl.  Com.  224.  But  now  in  England,  as  to  what  shall  be  held  day  and  what 
night,  see  7  Will.  IV.  Sf  1  Vict.  c.  86,  s.  4,  which  enacts,  that  9  o'clock  in  the  evening 
of  one  day  until  6  o'clock  in  the  morning  of  the  succeeding  day,  shall  be  considered 
night.      ■ 

Anciently, the  day  was  accounted  to  begin  only  at  sun-rising,  and  to  end  immediately 
at  sun-set,  as  stated  by  Lord  Hale,  infra ;  but  the  opinion  usually  held  was,  that  if  there 
be  daylight,  or  crepusculum,  twilight,  enough  to  descern  a  man's  face,  it  was  no  bur- 
glary.  3  Inst  63;  2  EasVs,  P..  C.  509.  But  tliis  did  not  extend  to  moonlight,  for  then 
many  midnight  burglaries  would  go  unpunished.  4  Blue.  sup.  The  brealiuig  and  en- 
tering must  both  be  committed  in  the  night  time.  But  the  breaking  may  be  committed 
in  one  night,  and  the  entering  in  another.  Rex  v.  Jordan,  7  Car.  Sf  P.  432.  The 
breaking,  however,  must  be  with  intent  to  enter,  and  the  entry  with  intent  to  commit  a 
felony.     Rex  v.  Smith,  R.  .^  i?.  417. 

If  there  be  daylight  or  twilight  enough  begun  or  left,  whereby  the  countenance  of  a 
person  may  be  reasonably  discerned,  a  breaking  and  entry  is  not  burglary  by  the  com- 
mon  law.  7  Dane's  Ahr.  134.  Hence  an  indictment,  which  alleged  the  crime  to  have 
been  committed  between  the  hours  of  12  at  night  and  9  of  the  succeeding  evening,  will 


550  HISTORIA  PLACITORUM  CORONA. 

It  hath  been  antiently  held,  that  after  sun -set,  tho  day-Hght  be  not 
quite  gone,  or  before  sun-rising  is  noctanter  to  make  a  burglary, 
halt.  cap.  99.  p.  352,{h)  and  accordingly  cited  by  Crompt.fol.  o2.b, 
to  have  been  judged  by  Portmaii,  3  E.  6.,(e)  and  the  felons  executed, 
and  21  H.  7.  Kelw.  15.  a. 

But  the  latter  opinion  hath  been  and  still  obtaineth,  that  if  the 
sun  be  set,  yet  if  the  countenance  of  a  party  can  be  reasonably 
discerned  by  the  light  of  the  sun  or  crepusculum,  it  is  not  night, 
nor  noctanter  to  make  a  burglary;  and  with  this  agrees  Co;  P.  C. 
p.  63.  and  hence  it  is,  that  altho  a  town  unwalled  shall  not  be 
amerced  for  the  escape  of  a  murderer,  if  the  murder  were  com- 
mitted in  the  night,  yet  if  it- were  done  only  in  vespere  diei,X\\Q 
township  shall  be  amerced.  3  E.  3.  Coron.  293.  And  if  a 
{"551  ]  a  robbery  be  committed  before  sun-rising,  or  after  sun-set, 
and  whilst  it  is  so  far  day-light,  that  the  countenance  of  a 
man  can  be  reasonably  discerned  by  the  light  of  the  day,  yet  the 
hundred  shall  be  charged,  otherwise  where  it  is  done  in  the  night, 

7  Co.  Rep.  34.  Milburn^s  case:  but  this  is  not  intended  of  moon- 
light, for  then  midnight  house-breaking  should  be  no  burglary; 
and  the  word  noctanter  is  to  be  applied  to  all  that  follows,  viz, 
fregit  Si-  intravit,  if  the  breaking  of  the  house  were  in  the  day- 
time, and  the  entring  in  the  night,  or  the  breaking  in  the  night, 
and  entring  in  the  day,  this  will  not  be  burglary,  for  both  make 
the  offense,  and  both  must  be  noctanter:  vide  CrompL  33.  a.  ex 

8  E.  4.  {k)  ...  .  _ 

But  if  they  break  a  hole  in  the  house  one  night,  to  the  intent  to 
enter  another  night  and  commit  felony,  and  accordingly  they  come 
at  another  night,  and  commit  a  felony  through  the  hole  they  so 
made  the  night  before,  this  seems  to  be  burglary,  for  the  breaking 
and  entring  were  both  noctanter,  tho  not  the  same  night;  and  it 
shall  be  supposed,  that  they  brake  and  entred  the  night  when  they 
entred,  for  the  breaking  makes  not  the  burglary  till  the  entry. 

2.  There  must  be  a  breaking  and  an  entry  to  make  the  burglary, 
and  therefore  I  shall  speak  of  them  both  together.[5] 

(h)  New  Edit.  cap.  151.  p.  486. 

(i)   See  the  like  judgment  per  Fineux,  Crompt.  33.  a. 

(k)  This  case  does  not  fully  prove  the  point  it  is  brought  for,  for  the  resolution  there 
was  only,  that  if  thieves  enter  in  by  night  at  an  hole  in  tlie  wall,  which  was  there  before, 
it  is  not  burglary,  but  it  docs  not  appear  who  made  the  hole. 


be  quashed  for  want  of  a  noctanter.  The  State  v.  MatJier,  N.  Chipm.  R.  32  ;  The  Slate  v. 
Bancroft,  10  Mass.  R.  10.5;  Th,'  State  v.  (1.  S.  1  rtjlcr,  Vennt.  R.  2'J5;  Com.  v.  Cheta- 
Her,  1  Dane^s  Air.  134;   sed  vide  Thomas  v.  The  State,  5  How.  {Miss.)  Rep.  20. 

[5]  It  is  deemed  an  entry,  when  the  tliief  breaketli  the  house,  and  his  body,  or  any 
part  thereof,  as  his  foot  or  his  arm,  is  within  any  part  of  the  house,  or  when  he  puttcth 
a  gun  into  a  window  which  he  hath  broki^n,  (thoiigli  the  luind  be  not  in,)  or  into  a  hole 
of  the  house,  whicfi  he  hatli  made  with  intent  to  murder  or  kill,  this  is  an  entry  and 
breaking  of  the  house;  but,  if  he  doth  barely  break  the  house,  without  any  such  entry  at 
all,  this  is  no  burglary.    3  Inst.  64.   2  East's  I'.  C.  4U0. 

Thieves  c;imc  by  night  to  rob  a  house.  Tho  owner  went  out  and  struck  one  of  them; 
another  made  a  pass  with  a  sword  at  persons  lie  saw  in  the  entry,  and  in  so  doing,  his 


HISTORIA  PLACITORUM  CORONA.  551 

Antiently  the  law  was  so  strict  against  burglary,  that  the  very 
coming  to  a  house  with  intent  to  cotninit  a  burglary  was  held  pun- 
ishable with  death,  Cromp.  31.  by  Sir  Anthony  Brown;  but  that 
obtains  not  now  for  law  without  a  burglary  committed. 


Jiand  was  over  the  threshold.     This  was  adjudged  burglary  by  great  advice.  2  EasVs  P. 
C.  490.  • 

In  the  case  of  George  Gibbons,  Old  Bailey,  June  1752,  (Post.  107.  2  East's  P.  C.  490.) 
■which  was  indicted  for  burglary  in  the  dwelling-house  of  John  Allan,  it  appeared  in 
evidence,  that  the  prisoner,  in  the  night  time,  cut  a  hole  in  the  window  shutters  of  the 
prosecutor's  shop,  which  was  part  of  his  dwelling-house,  and  putting  his  hand  through 
the  hole,  took  out  watches  and  other  things,  which  hung  in  the  shop  within  his  reach,  but 
no  entry  was  proved,  otherwise  than  by  putting  his  hand  through  the  hole.  This  was 
held  to  be  burglary,  and  the  prisoner  was  convicted.  Introducing  the  hand  through  a 
pane  of  glass,  broken  by  the  prisoner,  between  an  outer  window  and  an  inner  shutter, 
for  the  purpose  of  undoing  the  window  latch,  is  a  sufficient  entry.  R.  v.  Baily,  R.  Sf 
R.  341.  So  would  the  mere  introduction  of  the  offender's  finger.  R.  v.  Davis,  R.  Sf 
R.  499.,  and  see  ante,  533. 

But  an  entry  through  a  hole  in  the  roof,  left  for  the  purpose  of  admitting  light,  is  not 
a  sufficient  entry  to  constitute  burglary;  for  a  chimney  is  a  necessary  opening  and  needs 
protection;  whereas,  if  a  man  choose  to  leave  a  hole  in  the  wall  or  roof  of  his  house^  in- 
stead of  a  fastened  window,  he  must  take  the  consequences.  R.  v.  Spriggs,  1  Moo.  Sf 
Rob.  357.  Co7n.  v.  Stewart,  7  Dane's  Abr.  136. 

If  the  instrument  with  which  the  house  is  broken,  happen  to  enter  the  house,  but  with- 
out any  intention  on  the  part  of  the  burglar  to  effect  his  felonious  intent,  (as  for  instance, 
to  draw  out  the  goods,)  with  it,  this  will  not  be  a  sufficient  entry  to  constitute  a  burglary. 
Rex  V.  Hughes  el  at.,  1  Leach,  496.  See  R.  v.  Roberts,  2  East's  P.  C.  487. 

The  prisoner  raised  a  window,  which  was  not  bolted,  and  he  tlirust  a  crow-bar  under 
the  bottom  of  the  shutter,  (which  was  about  half  a  foot  within  the  window,)  so  as  to 
make  an  indentation  on  the  inside  of  the  shutter,  but  from  the  length  of  the  bar,  his  hand 
was  not  inside  t^ie  house.  This  was  held  not  to  be  a  sufficient  entry  to  constitute  a  bur- 
glary. R.  V.  Rust  Sf  Ford,  R.  S(  M.  184.  Car.  C.  L.  293.  S.  C.  by  the  name  of  R.  v. 
Roberts. 

Where  the  house  was  broken,  but  not  entered,  and  the  owner,  for  fear,  threw  out  his 
money,  it  was  holden  to  be  no  burglary,  though  clearly  robbery,  if  taken  in  the  presence 
of  the  owner.  2  East's  P.  C.  490. 

Where  thieves  bored  a  hole  through  the  door  with  a  centre-bit,  and  part  of  the  chips  , 
were  found  in  the  inside  of  the  house,  by  which  it  was  apparent  that  the  end  of  the  cen- 
tre-bit had  penetrated  into  the  house;  yet,  as  the  instrument  had  not  been  introduced  for 
the  purpose  of  taking  the  property  or  committing  any  other  felony,  it  was  decided,  that 
this  was  not  sufficient  to  constitute  burglary.  R.  v.  Hughes,  2  East's  P.  C.  491. 

If  divers  come  in  the  night  to  do  a  burglary,  and  one  of  them  break  and  enter,  the 
rest  of  them  standing  to  watch  at  a  distance,  this  is  burglary  in  all.  3  Inst.  64. 

A  breaking  may  be  actual  or  constructive  :  an  actual  breaking  may  be  made  by 
breaking  the  substance  of  a  door  or  window,  as  the  glass  or  panels.  Com.  v.  Slevenson, 
8  Pick.  R.  354.    Rex  v.  McKearney,  Jebb's  Cas.  99. 

By  unfastening  either  door  or  window  and  opening  it.  Rex  v.  Robinson,  Mood.  C.  C. 
337.  State  V.  Wilson,  Coxe'sN.J.  R.  439.  Com.  v.  Stewart,  7  Dane's  Abr.  136. 

By  breaking  away  the  sides  of  an  aperture,  so  as  to  enlarge  it.  Rex  v.  Robinson,  Mood. 
C.  C.  327. 

By  raising  a  sash  or  trap-door,  or  pushing  open  a  door.  Rex  v.  Hyam,  7  C.  Sf  P.  441. 
Rex  V.  Haynes,  R.  ^  R.  451.  Rex  v.  Brown,  2  East's  P.  C.  487.  Rex  v.  Callar,  R.  Sf 
R.  157.  Rex  v.  Russell,  Mood.  377.  Sed  vide  Rex  v.  Laurence,  A  C.  Sf  P.  231. 

And  it  is  a  breaking,  although  there  be  an  outside  door  or  shutter  to  the  same 
opening,  which  is  not  broken.  Rex  v.  Bailey,  R.  S^  R.  341.  Rex  v.  Parses,  1  C.  ^  P.  300. 
Rex-w  Roberts,  2  East's  P.  C.  487.  nor  even  closed.  Rex  v.  Haynes,  R.  4"  Ry.  451. 

By  breaking,  removing,  or  opening  the  roof,  wall,  ceiling,  floor,  or  any  defence  or 
barrier  against  entry,  which  is  parcel  of  the  dwelling-house.  2  Russ.  on  C.  3. 

But  it  seems  the  entering  any  aperture,  found  open,  is  not  a  breaking.  Com.  v.  Steward, 
7  Dane's  Abr.  136.  Rex  v.  Spriggs,  cited  sup.  Rex  v.  L^is,  2  C.  Sf  P.  628.. 

It  is  a  constructive  breaking,  if  aa  entry  is  actually,  made,  and  Jthe^means  of  entrance 


551  HISTORIA  PLACITORUM  CORONA. 

Fregit,  there  is  a  double  kind  of  breaking,  1.  In  law,  and  thus 
every  one  that  enters  into  another's  house  against  his  will,  or  to  con:i- 
mit  a  felony,  tho  the  doors  be  open,  doth  in  law  break  the  house. 
2.  There  is  a  breaking  in  fact  an  actual  force  upon  the  house,  as  by 
opening  a  door,  breaking  a  window,  S,-c. 

And  altho,  in  the  remembrance  of  some  yet  alive.  Sir  N.  H.{1) 
chief  justice  did  hold,  that  a  breaking  in  law  ^as  sufficient  to  make 
a  burglary,  as  if  a  man  entred  into  the  house  by  the  doors 
j^  552  ]  open  in  the  night,  and  stole  goods,  that  this  is  burglary,  and 
accordingly  is  Crompt.  32.  a.  27  Jissiz  38.  yet  the  law  is, 
that  a  bare  breaking  in  law,  viz.  an  entry  by  the  doors  or  windows 
open  is  not  sufficient  to  make  burglary  without  an  actual  breaking, 
Co.  P.  C.  p.  64.  and  so  the  law  hath  been  generally  taken  to  this  day 
in  case  of  burglary.(m) 

And  these  acts  amount  to  an  actual  breaking,  viz.  opening  the 
casement,  or  breaking  the  glass  window,  picking  open  a  lock  of  a 
door  with  a  false  key,  or  putting  back  the  lock  with  a  knife  or  dag- 
ger, unlatching  the  door  that  is  only  latched,  to  put  back  the  leaf  of 
a  window  with  a  dagger,  Dult.  cap.  99. {n)  Crompt.  33.  a.  and  so  is 
common  experience.[6] 

To  take  down  a  pane  of  glass  of  a  glass-window  by  taking  out  or 
bending  aside  the  nails  that  fasten  it  is  a  breaking  of  a  house  within 
lliis  law,  because  the  glass-window  is  parcel  of  the  house. 

It  was  held  by  Manwood  chief  baron,  that  if  a  thief  goes  down  a 
chimney  to  steal,  this  is  a  breaking  and  entring,  Crompt.  fol.  32.  b. 
and  hereunto  agrees  Mr.  Ballon, p.  253.(o)[7] 

(Z)  Sir  Nicholas  Hyde,  see  Cro.  Car.  65.  225. 

(m)  See  Kd.  67  ^  70.  (n)  New  Edit.  p.  487.  ; 

(o)  The  reason  of  this  seems  to  be,  because  it  is  as  much  shut  as  the  nature  of  the 
things  will  admit. 


are  obtained  by  frightful  noises,  showing  dangerous  weapons,  or  attacks  on  the  house. 
Rex  V.  Swallow,  2  Kuss.  C.  ^  M.  8.  2  East's  P.  C.  486. 

By  any  fraud  or  trick  practised  to  obtain  admission;  as  by  abuse  of  process  or  legal 
authority;  or  under  pretence  of  business  with  some  one  within;  or  by  fraudulently  per- 
suajding  another  tp  give  adnnssion;  or  by  knocking  or  otherwise  pretending  a  right  or 
lawful  occasion  to  enter;  or  under  any  pretence  of  a  similar  character.  Rex  v.  Gascoigne, 
1  Leach,  C.  C.  284.  McGregor's  case,  Hume's  Crim.  Law,  98.  Browne's  case,  Jb.  4  BL 
Com.  226. 

[6]  Pugh  V.  Griffiths,  7  Ad.'  <^-  El.  836 ;  Rex  v.  Urdan,  7  Car.  Sf  P.  432 ;  Rex  v. 
Wheldon^,  8  Car.  ^  P.  247  ;  Rex  v.  Hyams,!  Car.  S;  Pay.  441. 

[7]  If  Ihethief  enter  by  the  chimney,  it  is  a  breaking;  for  that  is  as  much  closed  as 
the  nature  of  things  will  permit.  1  Hawk,  c.  38,  s.  4.    4  Bl.  Com.  22B. 

And  it  would  be  a  burglarious  breaking  to  constitute  burglary,  though  the  party  does 
not  enter  any  of  the  rooms  of  the  house.  Thus  in  Rex  v,  Brice,  R.  Sf  R.  450,  the  priso- 
ner  got  in  at  a  chimney  and  lowered  liimsclf  a  considerable  way  down  just  above  a  man- 
tel-piece of  a  room  on  the  ground  Hoor.  Holroyd  and  Burroughs,  JJ.  thought  this  was 
not  a  breaking  and  entering  of  tiie  dwelling-house,  on  the  ground  that  he  was  not  within 
the  dwelling-liouse,  till  lie  was  below  the  chimney-piece.  The  rest  of  the  judges,  how- 
ever, held  otherwise;  for  that  the  chimney  was  part  of  the  dwelling-house,  that  the  get- 
ting in  at  the  top  was  a  breaking  of  the  dwelling-house,  and  that  the  lowering  himself 
was  an  entry  therein. 

There  are  two  cases  in  the  Scotch  law,  which  are  somewhat  analogous  to  the  entry 


HISTORIA  PLACITORUM  CORONA.  552 

.  There  was  one  arraigned  before  me  at  Cambriclge  for  burglary,  and 
upon  the  evidence  it  appeared,  that  he  crept  down  a  chimney;  I  was 
doubtful  whether  this  were  burglary,  and  so  were  some  others;  but 
upon  examination  it  appeared,  that  in  liis  creeping  down  some  of  the 

into  a  chimney,  which  have  been  decided  to  be  brealiings.  The  one  where  the  defendant 
entered  a  sewer,  which  issued  from  a  cellar,  and  passed  under  ground.  Hume's  Crim.  Law 
of  Scot.  §  97  ;  and  tlie  other,  wliere  he  entered  a  paper-mill  by  tlie  race-way  of  the  water- 
wheel.  Id,  note  (3.)  In  the  former  case,  it  is  not  settled,  whether  the  passing  into  the 
sewer,  or  passing  that  part  o.f  it  which  enters  the  walls  of  the  house,  or,  passing  out  of  it 
into  the  house  constituted  the  offence.  The  latter  could  only  apply  in  l)urglary,  where 
such  a  building  had  a  covered  communication  with  a  dwelling-house. 

Where  the  prisoner  effected  an  entry  by  pulling  down  the  upper  sash  cf  a  window 
■which  had  not  been  fastened,  but  merely  kept  in  its  place  by  the  pulley-weight,  the 
judges  held  this  to  be  a  sufficient  breaking  to  constitute  burglary,  even  although  it  also 
appeared  that  an  outside  shutter,  by  which  the  window  was  usually  secured,  was  not 
closed  or  fastened  at  the  time.  R.  v.  Huines  and  Harrison,  R.  Sf  R.  451 ;  and  see  R.  v. 
Hyams,  7  C.  <^  P.  441. 

Where  an  entry  was  first  into  an  outer  cellar  by  lifting  up  a  heavy  iron  grating  that 
led  into  it,  and  then  into  the  house  by  a  window,  and  it  appeared  that  the  window, 
which  opened  by  hinges,  had  been  fastened  by  means  of  two  nails  as  wedges,  but  could, 
notwithstanding,  easily  be  opened  by  pushing;  the  judges  held,  that  opening  the  window 
so  secured,  was  a  breaking  sufficient  to  constitute  burglary.  Rex  v.  Hall,  R.  Sf  R.  355. 
So  where  a  party  thrust  his  arm  through  the  broken  pane  of  a  window,  and  in  so  doing 
broke  some  more  of  the  pane,  and  removed  the  fastenings  of  the  window  and  opened  it, 
R.  V.  Robinson,  R,  ^  M.  327.     And  see  R.  v.  Bird,  9  C.  S^  P.  44. 

But  if  a  window  thus  opening  on  hinges,  or  a  door,  be  not  fastened  at  all,  opening 
them  would  not  be  a  breaking  within  the  definition  of  burglary.  Even  where  the  heavy 
flat-door  of  a  cellar  which  would  keep  closed  by  its  own  weight,  and  would  require  some 
degree  of  force  to  raise  it,  was  opened;  it  had  bolts  by  which  it  might  have  been  fastened 
on  the  inside,  but  it  did  not  appear  it  was  so  fastened  at  the  time:  the  judges  were 
divided  in  opinion,  whether  opening  of  this  door  was  such  a  breaking  of  the  bouse  as 
constituted  burglary.  R.  v.  Cullan,  R.  Sf  R.  157.  It  was  holden  in  Brown's  case, 
(2  East,  P.  C.  487.)  that  it  was. 

It  seems  the  only  difference  between  these  two  cases  is,  that  in  Brown^s  case  there 
was  no  interior  fastenings,  but  in  Cullan's  there  were,  though  not  used.  In  a  later  case 
it  has  been  held  by  Bolland,  B.  that  the  lifting  up  of  a  trap-door  covering  a  cellar  which 
was  merely  kept  in  its  place  by  its  own  weight,  and  whicli  had  no  fastenings,  because  it 
being  a  new  trap-door,  they  had  not  been  put  on,  is  not  a  sufficient  breaking  to  consti- 
lute  a  burglary.    Rex  v.  Lawrence,  4  C.  Sf  P.  231.     See  R.  v.  Russell,  R.  Sf  M.  377. 

When  the  offender,  with  intent  to  commit  a  fielony,  obtains  admission  by  some  artifice 
or  trick  for  the  purpose  of  effecting  it,  he  will  be  guilty  of  burglary,  for  this  is  a  con- 
structive  breaking.  Thus  where  thjeves,  having  an  intent  to  roh,  raised  the  hue  and  cry, 
and  brought  ihe  constable,  to  whom  the  owner  opened  the  door;  and  when  they  came  in 
they  bound  the  constable  and  robbed  the  owner  ;  this  was  held  a  burglary.  So  if  admis- 
sion be  gained  under  pretence  of  business;  or  if  one  take  lodgings  with  a  like  felonious 
intent,  and  afterwards  rob  the  landlord;  or  get  possession  of  a  dwelling-house  by  false 
aflidavits  without  any  colour  of  tiUe,  and  then  rifie  the  house;  such  entrance  being 
gained  by  fraud,  will  be  burglarious.  2  East's  P.  C.  485.  So  in  A.  Hawkins's  case, 
O,  B.  1704,  2  East's  P.  C.  485,  she  was  indicted  for  burglary;  upon  evidence  it 
appeared  that  she  was  acquainted  with  the  house,  and  knew  that  the  family  were  in  the 
country;  and  meeting  with  the  boy  who  kept  the  key,  she  prevailed  upon  him  to  go 
with  her  to  the  house  by  the  promise  of  a  pot  of  ale,  robbed  the  house  and  went  off;  and 
this  being  in  tlie  nisU  time,  it  was  adjudged  that  the  prisoner  was  clearly  guilty  of  bur- 
glary.    And  see  Doe.  v.  Carter,  8  T.  R.  302. 

A  breaking  may  be  also  constructive,  as  where  in  consequence  of  violence  commenced 
or  threatened  in  order  to  obtain  entrance,  the  owner,  citlier  from  apprehension  of  the 
force,  or  with  a  view  more  effectually  to  repel  it,  opens  the  door  through  which  the  rob- 
ber enters.  But  where  no  fraud  or  conspiracy  is  made  use  of,  or  violence  commenced  or 
threatened  in  order  to  obtaiij  an  entrance,  there  must  be  an  actual  breach  of  some  part 


552  HISTORIA  PLACITORUM  CORONA. 

bricks  of  the  chimney  were  loosened,  and  fell  down  in  the  room, 
which  put  it  out  of  question,  and  direction  was  given  to  find  it  bur- 
glary; but  the  jury  acquuted  him  of  the  whole  fact. 

In  some  cases  there  may  be  a  burglary  committed  by  a  man  with- 
out an  actual  breaking. 

Thieves  come  with  a  pretended  hue  and  cry,  and  require  the  con- 
stable to  go  along  with  them  to  search  for  felons,  and  whilst  he  goes 
with  them  into  a  man's  house,  they  bind  the  constable  and  dweller, 
and  rob  him,  this  is  burglary, (/?)  Co.  P.  0.  p.  64.     The  hke  hap- 

(p)  Because  infraudem  legis;  for  the  same  reason  it  is  burglary,  where  the  thieves 
gain  entrance  by  pretenses  of  business  with  one  in  the  house,  Kel.  42,  or  of  executing 
any  process,  or  the  like,  Kel.  43,  44.  62.  82. 


of  the  house,  though  it  need  not  be  accompanied  with  any  violence  as  to  the  manner  of 
executing  it.     2  East^s  P.  C.  486. 

Some  parts  of  the  house  must  be  broken,  where  the  prisoner  opened  the  area  gate  with 
a  skeleton  key,  and  from  the  area  passed  into  the  kitchen  through  a  door,  which  did  not 
appear  to  have  been  shut  at  the  time,. the  judges  held  that  opening  the  area  gate  was  not 
a  breaking  of  tlie  dwelling,  as  there  was  no  free  passage  in  the  time  of  sleep  from  the 
area  into  the  house.    Rex  v.  Davis,  R.  Sf  R.  322. 

So  breaking  a  door  which  formed  part  of  the  outward  fence  of  the  curtilage  of  a  dwell- 
ing-house,  and  which  opened  not  in  any  building,  but  into  a  yard  only,  was  holden  not 
to  be  a  breaking  of  the  dwelling-house;  the  premises  consisted  of  a  dwelling-house, 
warehouse,  and  stables  surrounding  a  yard;  there  was  an  immediate  entrance  to  the 
dwelling-house  from  the  street,  and  a  gate  and  gateway  under  one  of  the  warehouses 
leading  into  the  yard;  the  prisoner  entered  the  premises  by  breaking  this  gate:  the 
judges  held  that  this  was  not  burglary ;  that  breaking  this  gate,  which  was  part  of  the 
outward  fence  of  the  curtilage,  and  not  opening  into  any  part  of  the  buildings,  was  not  a 
breaking  of  any  part  of  the  dwelling-house.    R.  v.  Bennett,  R.  S(  R.  289. 

A  shutter-box  partly  projected  from  a  house,  and  adjoined  the  side  of  the  shop  win- 
dow, which  side  was  protected  by  wooden  panelling  lined  with  iron: — Held,  that  the 
breaking  and  entering  the  shutter-box  did  not  constitute  burglary.  R.  v.  Paine^ 
7  Car  Sf  P.  135.  . 

A  burglary  may  be  committed  by  breaking  on  the  inside,  for  though  a  thief  enter  a 
dwelling-house  in  the  night  time  through  the  outer  door  being  left  open,  or  by  an  open 
window,  yet  if,  when  within  the  house,  he  turn  the  key  or  unlatch  a  chamber-door,  with 
intent  to  commit  felony,  this  is  burglary.  {R.  v.  Johnson,  2  EasVs  P.  C.  488.)  And 
this  may  be  done  by  a  servant,  who  sleeps  in  an  adjacent  room,  unlatching  his  master's 
door,  and  entering  his  apartment  with  intent  to  kill  him;  (ante  p.  544,  2  EasVs  P.  C. 
488;)  or  to  commit  a  rape  upon  his  mistress;  (Grrty's  case,  1  5'i/a.  481.)  But  Lord  Hale 
doubts  whether  a  guest  at  an  inn  is  guilty  of  burglary,  by  rising  in  the  night,  open- 
ing his  own  door,  and  stealing  goods  from  other  rooms ;  (p.  554.)  And  it  seems  cer- 
tain, that  breaking  open  a  chesi  or  trunk  is  nol  in  itself  burglarious;  {Post.  108,  109, 
2  EasVs  P.  C.  488;)  and  according  to  the  better  opinion,  the  same  principle  applies  to 
cupboards,  presses,  and  other  fixtures  which,  though  attached  to  the  freehold,  are  in- 
tended only  the  better  to  supply  the  place  of  movable  depositories.  (Post.  109.)  And 
Mr.  J.  Foster  there  says,  "  in  questions  between  the  heir  and  devisee  and  the  executor;"- 
(see  2  Vern.  508,  1  P.  Wms.  94 ;)  those  fixtures  may  with  propriety  enough  be  con- 
sidered as  annexed  to  and  parts  of  the  freehold.  The  law  will  presume,  that  it  was  the 
intention  of  the  owner  undrr  whose  bounty  the  executor  clainieth,  that  they  should  be  so 
.considered,  to  the  end  that  the  house  might  remain  to  those  who  by  operation  of  law  or 
by  his  bequest  should  become  entitled  to  it,  in  the  same  plight  he  put  it,  or  should  leave 
it  entire  and  undefuced.  But  in  capital  cases  I  am  of  opinion  that  such  fixtures  which 
merely  supply  the  place  of  chests  and  other  ordinary  utensils  of  household  should  be  con- 
sidered in  no  other  liglif  than  as  mere  movables  partaking  of  the  nature  of  those  uten- 
eils,  and  adapted  to  the  same  use.     See  2  EasVs  P.  C.  489. 

Unlocking  and  opening  a  hall  door  of  a  hou_se,  and  running  away,  is  a  sufficient  break- 
ing  out  of  the  hdusc.  Rex  v.  Lawrence,  i  C.  Sf  P.  231.  Sec  R.  v.  Compton,  7  C.  Sf  P. 
139. 


HISTORIA  PLACITORUM  CORONA.  553 

peneJ  in  Black  Fn/ars  1664,  where  thieves  pretending  that  J3.  har- 
boured traitors,  called  the  constable  to  go  with  them  to  apprehend 
him,  and  tlie  constable  entring,  they  bound  the  constable,  and  rob- 
bed ^3.  and  were  executed  for  burglary,  and  yet  in  both  cases  tlie 
owner  opened  the  doors  of  his  own  accord,  at  the  command  of  the 
constable.     Cromp.  32.  h. 

Tliieves  come  in  the  night  to  rob  A.  who,  perceiving  it,  opens  his 
door,  and  issues  out  and  strikes  one  of  the  thieves  with  a  staff,  an- 
other thief  having  a  pistol  in  his  hand,  perceiving  others  in  the  entry 
ready  to  interrupt  them,  puts  his  pistol  within  the  door  over  the 
threshold,  and  shot,  so  that  his  hand  was  over  the  threshold,  but 
neither  his  foot,  nor  the  rest  of  his  body,  and  upon  this  evidence  by 
great  advice  it  was  adjudged  burglary,  and  the  thief  hanged,  and  yet 
he  brake  not  the  house,     26  Eliz.  Cromp.  32.  a. 

If.-'?,  the  servant  of  B.  conspire  with  C.  to  let  him  in  to  rob  B.  and 
accordingly  A.  in  the  night-time  opens  the  door  or  window,  and  lets 
him  in,  this  is  burglary  in  C.  but  larciny  in  A.  the  servant,  Dalt. 
cap,  99.  p.  253. (q)  it  seems  it  is  burglary  in  both,  for  if  it  be  burglary 
in  C.  it  must  needs  be  so  in  A.  because  he  is  present,  and  aiding  to 
C.  to  commit  this  burglary. [8] 

Ift^.  enter  the  house  of  B.  in  the  night-time,  the  outward  door 
being  open,  or  by  an  open  window,  and  when  he  is  within  the  house, 
turns  a  key  of  a  door  of  a  chamber,  or  unlatcheth  a  chamber  door 
to  the  intent  to  steal,  this  is  burglary,  tho  the  outward  door  were 
open;  and  so  it  was  adjudged  upon  a  special  verdict  before  me  at 
the  sessions  at  Newgate  1672,  by  advice  of  many  judges  then  also 
present. 

And  so  it  is,  if  a  thief  be  lodged  in  an,  inn,  and  in  the  night  he 
stealeth  goods,  and  goeth  away,  or  if  he  enter  into  the  house  secretly 
in  the  day-time,  and  there  stayeth  till  night,  and  then  steals  goods  and 
goes  away,  this  is  not  burglary,  DalL  iibi  supra  p.  253.  and  Cromp. 
34.  a.  but  if  in  either  of  the  cases  they  had  opened  an  inner  chamber 
dooTi  and  taken  the  goods,  it  had  been  burglary,  agreed  1672.(r) 

The  servant  lies  in  one  part  of  the  house,  the  master  in 
another,  and  the  stair-foot  door  of  the  master's  chamber  is  [  554  ] 
latched;  the  servant  came  in  the  night,  and  unlatched  the 
stair-foot  door,  and  went  up  into  his  master's  chamber  with  a  hatchet 
intending  to  kill  him,  and  wounded  him  dangerously,  but  the  master 
escaped. (.9)  Upon  this  special  matter  found  at  Winchester  assizes, 
by  the  advice  of  the  greater  number  of  the  judges,  exceptis  paucis,{f) 
it  was  adjudged  burglary, and  the  offender  was  executed.  T.  \G  Jac. 
Hutt.  Bep.  the  case  of  Hay  don  aiid  JEdmutids.{u) 

{(])  New  Edit.  p.  487.  (r)  Kel.  69. 

^s)  In  old  times  this  would  have  been  adjudged  petit  treason,  for  antiently  where  the 
intent  was  so  apparent  voluntas  reputabatur  pro  facto.     Coron.  383. 

{t)  They  all  concurred,  except  Winch,  who  doubted.  ((/)  Hutt.  20.  Kel.  67. 


[8]  Rex  V.  Johnson,  1  Car.  Sf  Marsh.  218 ;  Rex  v.  Cornwell,  2  Stra.  R.  860;   19  State 
Trials,  782.  note. 


554  HISTORIA  PLACITORUM  CORONA. 

If  a  man  enter  in  the  night-time  by  the  doors  open,  with  the  in- 
tent to  steal,  and  is  pursued,  whereby  he  opens  another  door  to  make 
his  escape,  tliis  I  think  is  not  burglary  against  the  opinion  of  Dalt. 
p.  25o.{x)  out  of  Sir  Francis  Bacon,  for  fregit  <§*  exivit,  non  /regit 
8c  intravit.{y) 

\{  Ji.  be  a  lodger  in  an  itm,  and  he  goes  up  to  his  chamber  to  bed, 
and  the  chamberlain  pulls  to  the  door  and  latcheth  it,  or  Ji.  himself 
locks  it,  and  in  the  night  he  riselh,  openeth  his  chamber  door,  steals 
goods  in  the  house,  and  goes  away,  it  may  be  a  question,  whether 
this  be  burglary,  it  seems  not,  because  he  had  a  kind  of  special 
interest  in  his  chamber,  and  so  the  opening  of  his  own  door  was  no 
breaking  of  the  inn-keeper's  house,  for  t/^.  hath  a  special  property  in 
his  chamber;  but  if  he  had  opened  the  chamber  oi  B.  a  lodger  in 
the  inn  to  steal  his  goods,  this  had  been  burglary. 

And  in  that  case  of  a  lodger,  tho  he  hath  a  special  interest  in  the 
chamber,  yet  he  being  but  a  lodger,  and  in  an  inn,  the  burglary 
must  be  supposed  of  the  mansion-house  of  the  inn-keeper  :(z)  vide 
plus  infra. 

If  A.  enter  into  the  house  of  B.  in  the  night,  by  the  doors  open, 
and  breaks  open  a  chest,  and  takes  away  goods  without  breaking 
open  of  an  inner  door,  this  is  no  burglary,  because  the  chest  is  no 
part  of  the  house. (a) 

But  if  he  breaks  open  a  study  or  counting-house,  or  shop 
[]  555  1  within  the  house,  this  is  burglary,  tho  none  usually  lodge  in 
the  study;  and  the  same  law  seems  to  be,  if  he  break  open 
a  cupboard  or  counter  fixed  to  the  house  ;(Z>)  qusere. 

3.  Fregit  <§'  intravit.  There  must  be  an  entry  as  well  as  a  break- 
ing, and  both  must  be  in  the  night,  and  with  an  intent  to  steal,  other- 
wise it  is  no  burglary. [9] 

t-^.  intending  to  rob  B.  breaks  a  hole  in  his  house,  but  enters  not, 
B.  for  fear,  throws  out  his  money  to  him,  t--?.  takes  it  and  carries  it 
away,  this  is  certainly  robbery,  and  some  have  held  it  burglary,  tho 
Ji.  never  entred  the  house ;  and  so  it  is  reported  to  have  been  ad- 
judged by  Saunders  chief  baron.    Crompt.  31.  b.  tamen  qusere.{c) 

If  t-^.  breaks  the  house  o{ B.  in  the  night-time,  with  intent  to  steal 
goods,  and  breaks  the  window,  and  puts  in  his  hand,  or  puts  in  a 
hook,  or  other  engine  to  reach  out  goods,  or  puts  a  pistol  in  at  the 
window  with  an  intent  to  kill,  tho  his  hand  be  not  within  the  window, 
this  is  burglary.     Co.  P.  C.  p.  64.  Vide  infra. 

(x)  New  Edit.  p.  487. 

(y)  But  now  this  doubt  is  settled  by  12  Ann.  cap.  7.  whereby  breaking'  to  get  out  is 
put  upon  the  same  foot  with  breaking  to  get  in.     And  see  7^8  W.  IV.  c.  29.  s.  11. 

(z)  Kel.  83. 

(fl!)  Kel.  69.  Put  it  is  a  felony,  for  which  the  offender  is  ousted  of  his  clergy,  by  3  ^T 
AW.&;  M.  cap.  9. 

(/»)  Kel.  vbi  supra.  '    .  '  . 

(c)  It  was  adjudged  by  Mountague  chief  justice  C.  B.  and  Saunders  only  related  it 


[9]  Sed  vide  Pickering  v.  RuM,  1  Stark.  iJ.  48;  4  Campb.  R.  220.  -S.  C. 


HISTORIA  PLACITORUM  CORONA.  555 

Bin  if  he  shoots  without  the  window,  and  the  bullet  comes  in,  this 
seems  to  be  no  entry  to  make  burglary;  quasre.[lO] 

^.  B.  and  C.  come  in  the  night  by  consent  to  break  and  enter  the 
house  o{  D.  to  commit  a  felony,  c/^.  only  actually  breaks  and  enters 
the  house,  and  B.  stands  near  the  door,  but  actually  enters  not,  C. 
stands  at  the  lane's  end,  or  orchard  gate,  or  field  gate,  or  the  like, 
to  watch  that  no  help  come  to  aid  the  owner  or  dweller,  or  to  give 
notice  to  the  others,  if  help  comes,  this  is  burglary  in  them  all,  the 
•/?.  only  actually  brake  and  entered  the  house,  and  they  all,  in  law, 
are  principals,  and  excluded  from  clergy  by  the  statute  of  IS  Eliz. 
cap.  7.  and  so  it  is  in  robbery,  as  hath  been  said,  11  //.  4.  13.  b. 
Cromp  32.  a.  Co.  P.  C.  p.  64. 

lt\^.  being  a  man  of  full  age,  take  a  child  of  seven  or  eight  years 
old  well  instructed  by  him  in  this  villainous  art,  as  some  such  there 
be,  and  the  child  goes  in  at  the  window,  takes  goods  out,  and  de- 
livers them  to  t/2.  who  carries  them  away  this  is  burglary 
in  ^.  tho  the  child  that  made  the  entry,  be  not  guilty  by  [  556  1 
reason  of  his  infancy. 

So  if  the  wife,  in  the  presence  of  the  husband,  by  his  threats  or 
coercion  breaks  and  enters  the  house  of  B.  in  the  night,  this  is  bur- 
glary in  the  husband,  tho  the  wife,  that  is  the  immediate  actor,  is 
excused  by  the  coercion  of  her  husband. 

4.  Domum  mansionaletn :  what  shall  be  so  said. [11] 


[10]  See  note  (5)  •p.  551.  It  is  essential  to  burglary  that  there  should  be  an  entry, 
which  may  be  made  by  introducing  any  part  of  the  body  into  the  house  entered.  Rex 
T.  Dams,  R.  Sf  R.  499;  Rex  v.  Bailey,  Id.  341;  Rex  v.  Parkts,  1  C.  Sf  f.  300;  Rex 
V.  Roberts,  2  East's  P.  C.  487.  By  discharging  or  throwing  any  missile  into  the  house, 
or  by  introducing  any  instrument  into  the  house,  provided,  that  such  instrument  or 
missile  be  used  as  a  means  of  committing  or  attempting  to  commit  a  felony.  Rex  v. 
Hughes,  1  Leach,  C.  C.  406 ;  Pickering  v.  Rudd,  4  Camp.  R.  220;  Rex  v.  Rust,  Mood. 
C.  C.  183.  An  entry  may  be  by  a  door  or  window,  although  there  be  an  inside  door  or 
shutter  to  the  same  opening  which  is  not  broken,  or  an  outside  door  or  shuUer  which  is 
not  closed.     Rex  v.  Bailey,  Rex  v.  Parkes,  and  Rex  v.  Haines  before  cited. 

[11]  As  to  the  Dwelling-house  and  Residence. — A  dwelling-house  includes, 

1.  All  apartments  under  the  same  roof  having  a  closed  and  covered  communication 
with  the  dwelling-house,  whether  the  occupants  of  the  apartments  reside  within  the 
dwelling-house  or  not.  Sefton's  case,  R.  ^  R.202;  Com  v.  Chevalier,  1  Dane's  Abr. 
IM;  CarreVs  case,  1  Leach,  237 ;  Rex  v.  Bailey,  Moody,  23;  Stock^s  case,  R.  &•  R.  185  • 
2  Taunt.  R.  3.39.  ^  -/  }  , 

2.  All  apartments  under  the  same  roof,  the  occupant  of  which  resides  in  the  dwelling, 
house,  whether  they  have  a  closed  and  covered  communication  with  the  dwelling-house 
or  not.  Rex  v.  Burrowes,  Moody,  274.  Kel.  84.  Brown's  case,  2  East,  P.  C.  501. 
2  Russ.  22.    2  Leach,  1016.  note. 

3.  Any  building  within  the  curtilage  of  the  dwelling-house,  although  not  under  the 
same  roof,  nor  adjoining  the  dwelling-house,  nor  having  any  closed  and  covered  comma- 
nication  with  it,  provided  it  be  occupied  with  it.  Gibson's  case,  2  Eist,  508.  Hancock's 
case,  R.  Sf  R.  170.  LHhgo's  case.  Id.  357.  Rex  v.  Chalking,  Id.  334.  Waller's  case, 
Moody,  13.     Clayburn's  case,  R.  S^  R.  360.  .  Thompson's  case,  1  Lew.  32. 

4.  It  seems  that  a  build  ng  or  apartment  is  not  excluded  from  bein<r  part  of  a  dwelling, 
house  merely  because  held  by  a  different  title.  2  Russ.  1 6.  2  East,  P.  C.  494.  contra 
infra,  p.  559. 

But  a  dwelling-house  does  not  include, 

5.  An  adjoining  building  not  being  within  the  curtilage  of,  nor  having  any  closed  or 
covered  communication  with  the  dwelling-house;  although  this  may  not  be  settled  when 


556  HISTORIA  PLACITORUM  CORONA. 

An  indictment,  quod  felonice  Sf  hurglariter  /regit  <§•  iniravit  ec- 
clesiani  prochialem  de  D.  ea  intentione,  «§'C.  is  a  good  indictment  of 
burglary,  for  ecclesia  is  domus  mansionalis,  Co.  P.  C.p.  64.  Dy.  99. 

a.{d.) 

(d)  Lord  Coke  says  it  is  the  mansion-house  of  Almighty  God,  but  this  is  only  a  quaint 
turn  without  any  argument,  and  seems  invented  to  suit  liis  definition  of  burglary,  viz. 
the  breaking  into  a  ?na«s; on- house,  whereas  it  appears  from  Spelinan  loco  supra  citato, 
and  22  Assiz,  [)5.  that  it  is  not  necessary  to  burglary,  that  a  mansion-house  be  broken, 
for  the  breaking  of  cliurches,  the  walls  or  the  gates  of  the  city  is  also  burglary,  and  the 
word  mansionalis  is  only  applicable  to  one  kind  of  burglary,  viz.  the  breaking  of  a  private- 
house,  in  which  case  it  must  be  a  dwelling-honse. 


the  occupant  of  the  building  resides  in  the  dwelling-house.  E<sginfon's  case,  2  Leach, 
913.  2  Russ.  57.  Gibson's  case,  1  Leach,  357.  2  East,  P.  C.  507.  Brown's  case, 
2  East,  501.     SomerviUe's  case,  2  Deacon's.  Abr.  1510. 

G.  Nor  any  other  building  not  within  the  curtilage.  Ellison's  case.  Moody,  336. 
Hiles  V.  H'd.  of  Shrewsbury,  3  East  R.  457. 

7.  Nor  any  building  or  apartment  so  occupied  as  to  be  the  dwelling  of  another. 

8.  A  building  is  within  the  curtilage  of  a  dwelling-house  when  it  is  within  the  same 
enclosure  with  it;  (2  East,  493;  4  Black.  Com.  225;  Garland's  case,  1  Leach,  144. 
2  East,  P.  C.  493;  Westicood's  case,  R.  Sf  R.  495;  Parker's  case,  4  John's  R,  423;)  or 
when  it  is  within  an  enclosure  of  which  the  dwelling-house  makes  part,  and  both  open 
into  the  enclosure;  {Stallion's  case.  Mood.  398.)  or  when  it  makes  part  of  an  enclosure 
surrounding  the  dwelling-iiouse,  and  opens  into  such  enclosure;  (Hancock's  ca.se,  R  ^  R. 
170.)  pr  when  the  dwelling-house  or  building  make  part  of  the  enclosure;  {Gibson's  case, 
2  East,  P.  C.  508;  Lithgo's  case,  R.  Sf  R.  357;  Walter's  case.  Moody,  13;  Clayburn's 
case,  R.  Sf  R.  360;  contra  Ttcitty's  case,  1  Hayw.  102;   Wilson's  lb.  242;   Gunn's  case, 

1  Nott  Sf  McCord,  583.)  and  open  into  it,  provided  in  each  case  that  the  enclosure  is  the 
enclosure  of  the  dwelling-house.  See  the  Mass.  Commissioners'  Rep.  Tit.  "  Burglary," 
pp.  8,  9,  10,  13,  14,  15,  where  the  subject  is  much  discussed  in  the  notes. 

The  breaking  and  entering,  to  constitute  a  burglary,  must  be  into  the  dwelling-house 
of  another,  that  is  to  say,  a  house  in  which  the  occupier  or  his  family  usually  reside,  or 
in  other  words,  dwell  and  lie  in. 
.  It  has  been  said  tliat  a  church  may  be  the  subject  of  burglary,  (3  Inst.  64 ;  Hale,  infra, 
p.  556.)  but  this  seems  questionable,  (see  1  Hawk.  c.  38.  s,  17.)  the  act  7  &  8  Geo.  IV. 
c.  29.  s.  11.  merely  mentions  "dwelling-house."  There  is  an  express  provision  as  to 
breaking  and  entering  into  and  stealing  chattels  in  a  church,  1  Sf  8  Geo.  IV.  c.  29.  s.  10. 

A  house  under  repair,  or  a  building  intended  for  and  constructed  as  a  dwelling-house, 
in  whicii  no  one  lives,  though  the  owner's  properly  is  deposited  there,  is  not  a  place  in 
which  burglary  can  be  committed,  for  it  cannot  be  deemed  his  dwellmg-house  until  he 
has  taken  possession  and  began  to  inhabit  it,  (1  Leach,  185,  Fuller's  case,  2  Easl's-P.  C. 
498;  1  Leach,  196,  n.;  Elsmore  v.  St.  Briavells,  2  M.  Sf  R.  514.  8  B.  Sf  Cress.  461. 
S.  C.)  nor  will  it  make  any  ditFurencc  if  one  of  the  workmen  engaged  in  the  repairs 
sleep  there  in  order  to  protect  it;  (1  Leach,  186,  in  notis ;)  nor  though  the  house  is  ready 
for  the  reception  of  the  owner,  and  lie  sent  his  property  into  it  preparatory  to  his  own 
removal,  will  it  become  for  this  purpose  his  mansion.  Rex  v.  Hallard,  2  East,  P.  C.  498. 
R.  V.  Thompson,  lb.  2  Leach,  771. 

So  if  the  landlord  of  a  house  purchase  the  furniture  of  his  outgoing  tenant,  and  pro- 
cure  a  servant  to  sleep  there  in  order  to  guard  it,  but  without  any  intention  of  making 
it  his  own  residence,  a  breaking  into  the  house  will  not  amount  to  burglary.    R.v. Davis, 

2  LeacA,  876.  Rex  v.  Smith,  2  East's  P.  C.  497.  Rex  v.  Fuller,  Id.  498.  1  Leach, 
196.«. 

Where  neither  the  owner  nor  any  of  the  family  have  slept  in  the  house,  it  is  not  his 
dwelling-house  so  as  to  maJie  the  breaking  into  it  burglary,  though  he  had  used  it  for 
ills  meals  and  all  purposes  of  his  business.    Rex  v.  Martin,  R.  Sf  R.  108. 

If  a  man  dies  in  his  leasehold  house,  and  his  executors  put  servants  in  it,  and  keep 
them  there  at  board  and  wages,  burglary  may  be  commuted  in  breaking  it,  and  it  may 
be  laid  to  be  the  executor's  property.    2  East's  P.  C.  499. 

It  is  not  absolutely  necessary  to  make  it  burglary  that  any  person  should  be  actually 
within  the  house  at  the  tii,ne  the  otfcnce  is  committed.    For  if  the  owner  leaves  it 


HISTORIA  PLACITORUM  CORONA.  556 

If  Jl.  have  a  dwelling-house,  and  upon  occasion  he  and  all  his 
family  are  absent  a  night  or  more,  and  in  their  absence  in  the  night 
a  thief  breaks  and  enters  the  house  to  commit  felony,  this  is  burglary. 
Co.  P.  C.  ribi  supra. 
•  So  if./?,  have  two  mansion  houses,  and  is  sometimes  with  his.fa- 


animo  rewrtendi,  though  no  person  resides  there  in  his  absence,  it  vCill  still  be  his  man- 
sion,   i  Havok.  C.51.  s,  II. 

As  if  a  man  has  a  house  in  town  and  another  in  the  country,  and  goes  to  the  latter  in 
the  summer,  the  nocturnal  breaking  into  either  with  a  felonious  design  will  be  buro-la- 
rious.  Fast.  77.  Nulbrowti's  case;  2  EasVs  P.  C.  406.  Com.  v.  Brown,  3  Rawle  R.2Q7. 
so  if  he  goes  a  journey.    R.  v.  Murray,  2  EasVs  P.  C.  496. 

And  though  a  man  leaves  his  liouse,  and  never  means  to  live  in  it  again,  yet  if  he  uses 
part  of  it  as  a  shop,  and  lets  his  servant  and  family  live  and  sleep  in  anotiier  part  of  it 
for  fear  the  place  should  be  robbed,  and  lets  the  rest  to  lodgers,  the  habitation,  by  his 
servant  and.  family,  will  be  a  habitation  by  him,  and  the  shop  may  still  be  considered  as 
part  of  his  dwelling-house.    R.  v.  Gibbons,  R.  &{  R,  442.  • 

But  where  the  prosecutor,  an  upholsterer,  left  the  house  in  which  he  resided  with  his 
family,  without  any  intent  of  returning  to  live  in  it,  and  took  a  dwelling-house  elsewhere, 
but  still  retained  the  former  house  as  a  warehouse  and  workshop,  two  women  employed 
by  him  as  workwomen  in  his  business,  and  not  as  domestic  servants,  slept  there  to  take 
care  of  tlie  house,  but  did  not  have  their  meals  there,  or  use  the  house  for  any  other 
purpose  than  sleeping  in  it  as  a  security  to  the  house,  the  judges  held  that  this  was  not 
properly  described  as  the  dwelling-house  of  the  prosecutor.  Rex  v.  Pltuinagan,  R.  &  R. 
187.    Forsythe  v.  The  State,  6  Ham.  22.  . 

The  occupation  of  a  servant  in  that  capacity,  and  not  as  tenant,  is  in  many  cases  the 
occupation  of  the  master,  and  will  be  a  sufficient  residence  to  render  it  the  dwelling- 
house  of  the  master.     Rex  v.  Stock,  R.  8^  R.  185.    Rex  v.  Wilson,  R.  Sf  R.  115. 

Where  the  prisoner  was  indicted  for  burglary  in  the  dwelling-house  of  J,  B. ;  J.  B. 
worked  for  one  W.  who  did  carpenter's  work  for  a  public  company,  and  put  J.  B.  into 
the  house  in  question,  which  belonged  to  the  company,  to  take  care  of  it,  and  some  mills 
adjoining.  J.  B.  received  no  more  wages  after  than  before  he  went  to  live  in  the  house. 
It  was  held  not  rightly  laid.     R.  v.  Raulings,  7  Car.  Sf  P.  150. 

If  a  servant  live  in  the  house  of  his  master,  at  a  yearly  rent,  the  house  cannot  be  de- 
scribed as  the  master's  house,  though  it  is  on  the  premises  where  the  master's  business 
is  carried  on,  although  the  servant  has  it  because  of  his  service.  The  servant  is  in  such 
a  case  the  tenant  of  the  master,  who  might  have  distrained  for  rent,  and  could  not  arbi- 
trarily  have  removed  him;  and  consequently,  the  occupation  of  the  servant  cannot  be 
deemed  the  occupation  of  the  master.  R.  v.  Jains  et  al.  R.  <^-  M.  7. 

Every  permanent  building,  in  which  a  party  may  dwell  and  lie,  is  deemed  a  dwelling- 
house,  and  burglary  may  be  committed  in  it.  A  set  of  chambers  in  an  inn  of  court  or 
college  is  deemed  a  distinct  dwelling-house  for  this  purpose.  1  Hale,  infra,  1  Hawk.  c.  38. 
s.  11. 

So  even  a  loft  over  a  stable,  used  for  the  abode  of  a  coachman,  which  he  rents  for  his 
'  own  use,  and  that  of  his  family,  is  a  place  which  may  be  burglariously  broken.    Rex  v. 
Turntr,  1  Leach,  305. 

So  also  burglary  may  be  committed  in  a  lodging-room,  (1  Leach,  89,)  or  in  a  garret 
used  for  a  workshop,  and  rented  together  with  an  apartment  for  sleeping,  and  if  the  land- 
lord does  not  sleep  under  the  same  roof,  the  place  may  be  laid  as  the  mansion  of  the 
lodger.  1  Leach,  237. 

But  burglary  cannot  be  committed  in  a  tent  or  a  booth,  in  a  market  or  fair,  even  al- 
though the  owner  lodire  in  it.  (1  Hawk.  c.  38.  s.  35.  infra  557,)  because  it  is  a  temporary, 
not  a  permanent  edifice.  But  if  it  be  a  permanent  building,  though  used  only  for  the 
purposes  of  a  fair,  it  is  a  dwelling-house.  Rex  v.  Smith,  1  M.  Sf  Rob.  256.  T/ie  State  v. 
Wilson,  1  Hayw.  242.  State  v.  Twitty,  Id.  102.  Slate  v.  Carrier,  5  Day.  R.  131.  State 
V.  Brooks,  4  Conn.  R.  446.  State  v.  Bailey,  10  Id.  144. 
,  And  all  outhouses,  within  the  same  curtilage  with  the  dwelling-house,  occupied  and 
immediately  connected,  and  communicating  with  it,  may  be  the  subject  of  burglary,  and 
t!ie  burglary  in  such  cases  may  be  alleged  to  have  been  in  the  dwelling-house.  Formerly 
this  was  the  case,  in  respect  to  all  buildings  within  the  curtilage.     But  by  stat.  7  &  8 


556  HISTORIA  PLACITORUM  CORONiE. 

mily  at  one,  and  sometimes  at  the  other,  the  breach  of  one  of  them 
in  the  absence  of  his  family  from  thence  is  burglary, (e)  4  Co.  Rejj.  40. 
a.  39  Eliz.  Dull.  cap.  09.  p.  254, (/) 

If  ./?.  have  a  chamber  in  a  college  or  inn  of  court,  where  he 

(e)  Even  tho  he  liad  never  lodged  in  it,  but  v\;as  removing  his  goods  there  in  order  to 
lodge  in  it.   Kel.  46. 

(/)  New  Edit.  p.  488.    See  also  Poph.  52.  Mo.  660. 


Geo.  IV.  c.  29.  s.  13,*  "No  building,  although  within  the  same  curtilage  with  the 
dwelling-house,  and  occu|)ied  therewith,  shall  be  deemed  to  be  part  of  such  dwelling- 
house  for  the  purpose  of  burglary,  or  for  any  of  the  purposes  aforesaid,  unless  there  shall 
be  a  communication  between  such  building  and  dwelling-house  either  immediate  or  by 
means  of  a  covered  and  inclosed  passage  leading  from  the  one  to  the  other."  This  pro- 
vision  made  an  important  alteration  in  the  law,  as  it  previously  stood,  for  no  communi- 
cation as  that  pointed  out  by  the  act  was  absolutely  necessary  at  common  law,  to  con- 
stitute burglary.  JVhere  the  prosecutor's  liousc  consisted  of  two  rooms  for  living  in, 
another  room  used  as  a  cellar,  and  a  wash-house  on  the  ground  floor,  and  of  three  bed- 
rooms up  stairs,  one  of  them  over  the  wash-house,  and  the  bed-room  over  the  house-place 
communicated  with  that  over  the  wash-house,  but  there  was  no  internal  communication 
between  the  wash-house  and  any  of  the  rooms  of  the  house,  but  the  whole  was  under  the 
same  roof,  and  the  defendant  broke  into  the  wash-house,  and  was  breaking  through  the 
partition  wall  between  the  wash-house  and  the  house-place ;  it  was  holdeh  that  the  de- 
fendant was  properly  convicted  of  burglary  in  breaking  the  house.  R.  v.  Burrows,  R.  Sc 
M.274. 

To  be  within  the  meaning  of  the  statute,  the  building  must  be  occupied  with  the  house 
in  the  same  right,  and  therefore  where  a  house  let  to,  and  occupied  by  A.  adjoined  and 
communicated  with  a  building  let  to,  and  occupied  by  A.  Sf  B.,  it  was  holden  that  the 
building  could  not  be  considered  a  part  of  the  dwelling-house  of  A.  Rex  v.  Jenkins,  R. 
Sf  R.  244. 

If  there  be  any  doubt  as  to  the  nature  of  the  building  broken  and  entered,  a  count  may 
be  inserted  for  breaking  and  entering  a  building  within  the  curtilage. 

Persons  may  temporarily  lodge  or  sleep  by  night  in  a  building  for  some  particular 
purpose,  or  on  some  special  occasion,  without  thereby  necessarily  making  the  same,  or 
any  part  thereof  a  dwelling-house.  The  cases  upon  which  this  doctrine  is  founded  are 
as  follows:  Willia7n  Fuller  was  indicted  for  burglary  in  the  house  of  Mr.  Holland.  The 
house  was  a  new  one,  finished  all  but  painting  and  glazing.  A  workman  who  was  con- 
stantly employed  by  Mr.  Holland,  but  not  one  of  his  family,  slept  in  it  for  the  purpose 
of  protection;  but  no  part  of  Mr.  Holland's  domestic  family  had  yet  taken  possession  of 
it.  1782,  2  East,  /'.  C.  498;  2  Kuss.  17;  1  Leach,  186.  vote.  The  prosecutor  had 
hired  the  house,  and  put  sundry  articles  of  merchandize  into  it,  and  on  the  night  of  the 
offence,  and  six  nights  before,  had  procured  two  hair-dressers  (none  of  his  own  family) 
to  sleep  there  to  take  care  of  the  goods  and  merchandize;  but  neither  he  nor  any 
of  his  family  had  ever  slept  there.  1765,  Harrises  case,  2  East,  P.  C.  498;  2  Leach, 
701.  Davis  was  indicted  for  larceny  in  the  house  of  Thomas  Pierce.  Pierce  purchased 
furniture  of  a  tenant  who  had  just  left  his  house,  for  the  use  of  his  future  tenants;  not 
intending  to  reside  there  himself  He  put  in  his  man  to  take  care  of  the  furniture  until 
a  new  tenant  should  take  possession.  It  does  not  appear  that  he  was  a  domestic  servant. 
1800,  Davis's  case,  2  Leach,  876;  2  East,  P.  C.  499  ;  2  Russ.  17. 

A  tradesman  removed  to  another  house,  and  intending  to  keep  the  house  which  he  had 
Icfl  as  a  warehouse  and  workshop,  he  put  into  it  two  women  who  worked  with  him  at 
his  business  as  an  upholsterer,  to  sleep  there  and  take  care  of  the  house.  1810,  Flana- 
gan's case,  R.  Sf  R.  187. 

The  exact  point  decided  in  these  cases,  was  that  the  houses  were  not  the  dwelling- 
houses  of  the  prosecutor.     But  they  are  sometimes  cited  to  show  that  the  houses  were 

*  The  following  decisions  will  show  how  the  law  was  before  the  passing  of  this  act. 
Rex  v.  Lithgo,  R.  S(  R.  357.  Hex  v.  Cholking,  R.  Sf  R.  334.  Rex  v.  Clnyhurn,  Id.  360. 
Egginton's  case,  2  East's'  P.  C.  424.  2  B.  Sf  l\  508.  2  Leach,  C.  C.  913.5".  C.  Ry  S(  Mood. 
C.  C.  13.  Brown's  case,  2  East's  P.  C.  493.  Garland's  case.  Id.  493.  1  Leach,  144.  Rex 
V.  Westnard,  R.  Sf  R.  495.  Rex  v.  Bennett,  Id.  289.  Rex  v.  Duns,  Idem.  322. 


HISTORIA  PLACITORUM  CORONJG.  556 

usually  lodgeth  in  term-time,  and  in  his  absence  in  the  vacation  his 
chamber  or  study  be  broken  open,  8fC.  this  is  burglary,  and  the  in- 
dictment shall  suppose  it  domus  matisiGna/is  Ji.  Co.  P.  C.p.  Q5. 
14  Car.  1.  Jludley's  case  before  cited. (^) 

{g)  Cro.  Car.  473.  by  the  name  of  Evans  and  Finch. 

not  dwelling-houses  at  all,  and  the  statement  of  some  of  the  cases  renders  it  probable  that 
such  was  the  opinion  of  the  court. 

Upon  the  first  three  of  these  cases,  the  fifth  report  of  the  English  Commissioners  on 
Criminal  Law  contains  the  following  remarks,  (p.  4.):—"  In  some  of  the  cases  in  which 
this  point"  (what  constitutes  a  dwelling-house,)  "  has  been  discussed,  the  house  was  slept 
in,  not  by  the  owner,  but  by  a  person  employed  by  him  for  a  particular  purpose,  viz.  the 
protection  of  the  goods,  and  it  was  held,  that  as  neither  the  owner  nor  any  of  his  family 
had  slept  there,  the  house  could  not  be  regarded  as  such  a  dwelling-house  as  could  be 
made  the  subject  of  burglary.  We  do  not  conceive  that  these  decisions  are  supported  by 
just  principles.  It  appears  to  us  that  every  one  who  iiihabits,  lodges  in,  or  uses  a  house 
as  his  dwelling  in  the  night-time,  is  entitled  to  the  piWection  of  the  law;  and  that  he  is 
equally  so  entitled,  although  his  object  in  being  there  may  be  solely  to  protect  the  pro- 
perty; and  farther,  that  such  protection  ought  equally  to  be  afforded,  whether  the  owner 
or  occupier  himself  lodge  there,  or  employ  an  agent  or  servant  to  do  so  for  the  same  pur- 
pose. The  fundamental  principle  of  the  law  is  the  protection  of  the  dwelling-house;  the 
proper  and  obvious  tests  for  deciding  whether  a  building  be  or  be  not  a  dwelling-house, 
must  consist  in  its  having  been  actually  used  as  such,  and  the  continuing  intention  still 
to  use  it  as  such.  Upon  the  question,  what  kind  of  use  ought  to  give  the  character  of  a 
dwelling-house  to  a  building,  we  conceive  the  proper  answer  to  be,  as  regards  the  crime 
of  burglary,  the  protection  of  its  inmates  from  violence  during  the  season  of  natural 
repose." 

''  It  cannot,  however,  be  doubted,  that  to  make  the  question  of  dwelling-house  or  no 
dwelling-house  to  depend  upon  the  particular  duties  to  be  performed  by  a  party  sleeping 
in  a  house,  would  be  inconvenient,  and  to  deny  protection  because  the  agent  employed 
was  not  a  domestic  servant,  or  because  he  was  placed  there  to  discharge  a  particular 
duty,  would  be  unreasonable;  and  we  have  therefore  ventured  to  suggest  a  more  certain 
rule." 

The  rules  on  this  subject  reported  by  the  English  Commissioners  are  as  follows : — 

Art.  14.  The  motive  or  object  for  using  such  building  for  the  purpose  in  the  last  pre- 
ceding article  mentioned,  (of  lodging  or  dwelling  therein  by  night,)  shall  not  be  deemed 
material  to  the  oiFence. 

Art.  16.  The  mere  casual  occupation  of  any  such  building, -without  the  consent  or 
license  of  the  owner  or  occupier  thereof,  that  such  building  should  be  used,  either  con- 
tinuously or  at  intervals,  for  the  purpose  of  dwelling  or  lodging  therein  by  night,  shall 
not  constitute  such  building  a  dwelling-house. 

As  to  Ownership  in  the  House. — It  is  necessary  to  ascertain  to  whom  the  mansion 
belongs,  and  to  state  it  with  accuracy  in  the  indictment.  If  the  rule,  observes  Mr.  East, 
(2  Easl^s,  P.  C.  499,  500,)  by  which  to  ascertain  this  ownership  may  be  compressed  with 
sufficient  discrimination  into  a  small  compass,  I  should  say,  generally,  that  where  the 
legal  title  to  the  whole  mansion  remains  in  the  same  person,  there  if  he  inhabit  it  either 
by  himself,  his  family  or  servants,  or  even  by  his  guests,  the  indictment  must  lay  the 
offence  to  be  committed  against  his  mansion.  And  so  it  is  if  he  let  out  apartments  to 
inmates  who  have  a  separate  interest  therein,  if  they  have  the  same  outer  door  or  en- 
trance into  the  mansion  in  common  with  himself  But  if  distinct  families  be  in  the  • 
exclusive  occupation  of  the  house,  and  have  their  ordinary  residence  or  domicile  there 
without  any  interfeitnce  on  the  part  of  the  proper  Owner,  or  if  they  be  only  in  possession  of 
parts  of  the  house,  as  inmates  to  the  owners,  and  have  a  distinct  and  separate  entrance, 
then  the  offence  of  breaking,  &c.  their  separate  apartments  must  be  laid  to  be  done 
against  the  mansion-house  of  such  occupiers  respectively. 

Nice  questions  frequently  arise  as  to  whether  a  party  dwells  in  and  occupies  a  house 

in  his  own  right  or  as  the  servant  of  another.     A  workman  was  employed  at  I5s.  a 

week  wages,  and   a  cottage   free  of  rent  and  taxes  for  himself  and   family  to  dwell  in, 

upon  an  indictment  for  burglary,  the  judge  at  the  trial  held,  that  as  the  workman  occu- 

VOL.  I. — 49 


556  HISTORIA  PLACITORUM  CORON.^. 

So  it  is,  if./?,  hires  a  chamber  in  the  house  of  B.  for  a  certain  time 
wherein  he  lodgeth,  and  during  the  time  contracted  for,  it  is  broken 
open,  &rc.  this  is  burglary,  and  the  indictment  shall  suppose  it  to  be 
domum  mansionalem  oi  td.iji) 

Qi)  Chief  Justice  Keeling  was  of  a  different  opinion,  and  thought  in  such  case  the  in- 
dictment ought  to  be  laid  for  breaking  domum  mansionalem  of  B.  for  while  there  is  but 
one  entrance,  it  is  but  one  dwelling-house,  tho  there  be  several  inmates,  but  otherwise  it 
is,  if  a  man  divides  some  rooms  from  the  rest  of  the  house,  and  make  another  door  to 
those  rooms,  Kel.  83.  Sfc. 


pied  this  cottage  for  his  own  benefit,  and  not  for  the  use  or  benefit  of  his  master,  it  wa9 
well  described  as  the  dwelling-house  of  the  workman;  and  upon  a  reference  to  the 
judges,  they  were  of  the  same  opinion.  R.  v.  Joblin,  R.  Sf  R.  525;  and  see  R.\. 
Smythe,  5  Var.  Sf  P.  202 ;  R.  v.  Jarvis,  R.SfM.l. 

Where  a  toll-gate  house,  erected  by  the  trustees  of  a  turnpike,  as  and  for  the  dwelling- 
house  of  the  person  who  might  be,  employed  to  collect  the  tolls  at  a  particular  gate,  was 
broken  and  entered  in  the  night-^me;  and  upon  an  indictment  for  the  burglary  it  ap- 
peared, that  the  trustees  had  let  the  tolls  to  Ward,  and  Ward  had  employed  Ellis  (at  weekly 
wages,  with  the  privilege  of  living  in  the  toll-house  in  question)  to  collect  them,  and  that 
Ellis  dwelt  in  the  house  for  that  purpose,  the  indictment  having  described  this  as  the 
dwelling-house  of  Ellis,  the  judges  held  the  description  to  be  correct,  for  Ellis  had  the 
exclusive  possession,  it  was  unconnected  with  any  premises  of  Ward^s,  and  Ward  did 
not  appear  to  have  any  interest  whatever.     Rex  v.  Camjield,  R.  Sf  M.  42. 

And  where  a  servant  lived  rent-free  in  a  house  belonging  to  his  master,  and  his  master 
paid  the  taxes,  and  his  master's  business  was  carried  on  in  the  house,  but  the  servant 
and  his  family  were  the  only  persons  who  slept  in  the  house,  and  tiiat  part  of  the  house 
in  which  his  master's  business  was  carried  on  was  at  all  times  open  to  those  parts  in 
which  the  servant  lived ;  upon  an  indictment  for  breaking  and  entering  that  part  of  the 
house  in  which  the  master's  business  was  carried  on,  it  was  held,  that  it  might  be 
described  as  the  servant's  house,  but  it  was  not  decided  that  it  might  not  also  be 
described  as  the  house  of  the  master.     Rex  v.  Witt,  R.  Sf  M.  248. 

If  a  servant  live  in  the  house  of  his  master  at  a  yearly  rent,  the  house  cannot  be 
described  as  the  master's  house,  though  it  be  on  the  premises  where  the  master's  busi- 
ness  is  carried  on,  and  although  the  servant  has  it  because  of  his  service.  Rex  v.  Jer- 
vis,  R.  S(  M.  7;  and  see  R.  v.  Smythe,  5  Car.  ^  P.  202. 

G.  Brown  was  indicted  for  burglary  in  the  dwelling-house  of  M.  Grdydon,  and  steal- 
ing thereout  oats.  A  second  count  stated  it  to  be  in  the  dwelling-house  of  T.  Truinhall. 
Graydon,  a  farmer,  had  a  dwelling-house  in  which  lie  lived,  a  stable,  cow-house,  cottage, 
and  barn,  all  in  one  range  of  buildings  in  the  order  mentioned  and  under  one  roof,  but 
they  were  hot  inclosed  by  any  wall  or  court-yard,  nor  was  there  any  communication 
from  one  to  the  otlier  within.  TrumhalVs  family  resided  in  the  cottage  by  agreement 
witji  Graydon  when  he  went  into  his  service ;  but  Trumbull  paid  no  rent,  only  an  abate- 
ment was  made  in  his  wages  on  account  of  his  family  residing  in  tiie  cottage.  Some 
corn  having  been  missed  out  of  the  barn,  Trumbull  and  another  person  put  a  bed  in  the 
barn  and  slept  there,  and  a  few  nights  after  they  had  so  done,  the  prisoner  unlocked  the 
barn-door  and  took  away  a  quantity  of  oats.  After  conviction  judgment  was  respited, 
upon  a  doubt  whether  it  could  be  considered  as  the  dwelling-house  either  of  Graydon  or 
Trumball;  upon  a  reference  it  was  agreed  (Mick.  T.  1787)  by  all  the  judges,  that  the 
sleeping  in  the  barn  made  no  difference.  But  tiiey  held,  (Buller,  J.  doubling,)  that  this 
was  no  more  than  a  license  to  Trumball  and  servant  to  lodge  in  the  cottage,  and  not  a 
letting  it  to  him,  and  that  the  barn,  as  well  as  the  rest  of  the  buildings,  being  under  the 
same  roof,  continued  parts  of  the  mansion-house  of  Graydon.  Ancf  many  of  the  judges 
inclined  to  think,  that  if  tliere  had  been  a  demise  of  the  cottage  to  Trumball,  the  barrt 
would  still  have  continued  part  of  Graydon's  dwelling-house  in  point  of  law.  G.  Brown's 
case,  2  EusVs  P.  C.  501. 

So  in  another  case,  where  the  servant  of  three  partners  in  trade  had  weekly  wages  and 
particular  rooms  assigned  to  liim  as  lodging  for  himself  and  his  family  over  the  bank  and 
brewery  office  of  his  employer,  with  which  his  lodging  communicated  by  a  trap-door  and  - 
a  ladder,  it  was  holden  by  the  twelve  judges  that  a  burglary  committed  in  the  banking- 


HISTORIA  PLA  ITORUM  CORONA.  557 

But  if,  in  the  king's  house  at  Whitehall,  or  in  the  great  house 
of  any  nobleman,  there  be  apartments  or  lodgings  assigned  to  the 
jeweller,  treasurer,  steward,  chaniberlain,  Sfc.  and  any  of  these  lodg- 
ings be  broken  up  burglarily,  the  indictment  must  suppose  it  to  be 


room  was  well  laid  as  in  the  dwelling-house  of  the  three  partners.  Hex  v.  Stockton  and 
others,  2  Taunt.  339.  2  Leach,  1015.  Russ.  Sf  Rij.  185.  S.  C.  nom.  Rex  v.  Stock. 

A  gardener  lived  in  the  liouse  of  his  master,  quite  separate  from  the  dwelling-house 
of  bis  master,  and  the  gardener  had  the  entire  control  of  the  house  he  lived  in,  and  kept 
the  key,  it  was  held  that  on  an  indictment  for  burglary,  the  gardener's  house  might  be 
laid  either  as  his  or  his  master's.  Reg.  v.  Rees,  7  Car.  Sf  P.  568. 

If  a  house  be  tenanted  by  a  married  woman,  it  must.'in  all  cases,  be  deemed  the  house 
of  her  husband,  and  not  of  her,  even  although  she  live  separate  from  her  husband.  Farr^s 
case,  Kd.  43.  2  East's  P.  C.  504.  and  see  Boggett  v.  Frier,  1  East,  301.  Rex  v.  Smyths, 
5  Car.  S(  P.  202. 

Where  a  married  woman  lived  apart  from  her  husband,  upon  an  income  arising  from 
property  vested  in  trustees,  for  her  separate  use,  the  judges  held  that  a  house  which  she 
had  lived  in,  was  properly  described  as  her  husband's  dwelling-house,  though  she  paid  the 
rent  out  of  her  separate  property,  and  tlie  husband  had  never  been  in  it,  Rex  v.  French 
Russ.  Sf  Ry.  491.  .  , 

Upon  an  indictment  for  burglary  in  the  dwelling-house  of  George  Gillings,  it  appeared, 
that  Gillings  owned  and  had  built  the  house  in  question,  but  had  never  lived  in  it,  that 
suspecting  his  wife  of  infidelity  with  one  Websdale,  they  agreed  to  separate,  and  he  told 
her  she  might  live  in  the  house  in  question,  and  gave  her  a  bed  and  bedding,  &,c.,  for  the 
purpose;  she  afterwards  lived  and  cohabited  with  Websdale  in  the  house  with  the  know- 
ledge of  her  husband;  Websdale  paid  the  expenses 'of  housekeeping,  but  never  paid  any 
rent  for  the  house  to  Gillings.  The  judges  held  that  the  house  was  properly  described 
as  the  dwelling-house  of  Gillings.  R.  v.  Wilford,  Russ.  ^  Ry.  517. 

A  prisoner  was  indicted  for  breaking  into  the  house  of  Elizabeth  A,  and  stealing  her 
goods.  There  was  a  second  count,  laying  the  property  of  the  goods  in  the  Queen.  It 
was  shown  by  proof  of  the  record,  that  the  husband  of  Elizabeth  A.  had  been  convicted 
of  felony,  and  it  was  also  proved  that  he  was  still  in  prison,  under  the  sentence,  and  that 
the  articles  stolen  were  his  before  his  conviction,  and  had  remained  in  the  house  from 
the  time  of  his  apprehension,  and  that  the  wife  continued  in  possession  of  the  house  and 
goods  till  they  were  stolen  by  the  prisoner.  It  was  held  that  the  prisoner  might  be  pro- 
perly convicted  of  larceny  on  the  second  count,  which  laid  the  property  of  the  goods  in 
the  queen,  although  there  had  been  no  office  found,  and  that  he  could  not  be  convicted 
of  housebreaking,  as  that  part  of  the  indictment  whicti  laid  the  goods  and  the  house  to 
be  those  of  Elizabeth  A.  could  not  be  supported.    Reg.  v.  Whitehead,  9  Car.  Sf  P.  429. 

A  house,  in  part  of  which  a  man  lives,  and  other  parts  of  which  he  lets  to  lodgers,  may 
be  considered  and  described  as  his  house,  though  he  has  taken  the  benefit  of  the  Insol- 
vent  Debtor's  Act,  and  executed  an  assignment,  including  the  house,  if  the  assignee  has 
not  taken  possession:  at  least,  no  objection  can  be  made,  if  in  other  counts  it  be  stated 
as  the  house  of  the  assignee,  and  in  others  of  the  lodger,  in  whose  room  the  offence 
was  committed.  Rex  v.  Ball,  R.  Sf  M.  C.  C.  30. 

In  the  case  of  persons  employed  by  the  crown  or  public  companies,  the  same  rule  pre- 
vails as  in  other  cases.  If  burglary  be  committed  in  tiie  Invalid  Office  at  Chelsea,  in 
Somerset  House  in  Whitehall,  in  any  of  the  public  offices  or  royal  palaces,  the  mansion 
must  be  laid  as  the  Queen's.  1  Leach,  324,  and  in  notis,  Rex  v.  Williams,  ante  p.  522. 

The  same  principle  applies  to  corporations,  for  if  a  burglary  be  laid  to  be  in  a  dwelling- 
house  of  one  of  the  officers  belonging  to  the  African  Company,  it  will  be  bad,  although  a 
corporation  cannot  be  resident.  Kel.  37.  1  Leach,  324,  in  notis.  2  East's  P.  C.  504. 

But  it  has  been  holden  that  if  the  agent  of  a  trading  company  reside  in  the  house  of 
his  employers  in  town,  it  may  properly  be  laid  as  his  dwelling.  Rex  v.  Margethe,  2 
Leach,  930. 

So  a  city  hall  may  be  described  as  the  residence  of  the  clerk  to  the  company  to  whom 
it  belongs.  Id.  in  notis. 

The  ground  for  these  two  last  decisions  is  stated  to  be  that  the  punishment  of  burglary 
was  intended  to  protect  the  actual  occupant  from  the  terror  of  disturbance  during  the 
hours  of  darkness  and  repose,  but  it  would  be  absurd  to  suppose  that  that  terror,  which  is 


557  HISTORIA  PLACITORUM  CORONA. 

domus  mansionahs  of  the  king,  or  of  him  that  is  truly  lord  or  pro- 
prietor of  the  house,  for  they  have  the  use  of  the  lodgings  as  servants 
only,  and  not  as  owners:  Hungale's  case  before  cited. (?) 

(i)p.  522. 


of  the  essence  of  the  crime  could,  from  a  breaking  and  entry  in  one  place,  produce  an 
effect  in  another.   2  Leach,  931. 

J,  Picket  was  indicted  for  burglary  in  the  dwelling-house  of  the  East  India  Company, 
which  is  inhabited  by  their  servants,  and  he  was  convicted  and  executed.  O.  B.  April, 
1765.    2  East's  F.  C.  501. 

C.  Maynard  was  indicted  for  burglary  in  the  mansion-house  of  the  master,  fellows  and 
scholars  of  Bennet  College  in  Cambridge.  It  appeared  that  he  broke  into  the  buttery  of 
the  college,  and  there  stole  some  money;  and  it  was  agreed  by  all  the  judges,  upon  a 
reference  to  them,  that  it  was  burglary.    C.  Maynard's  case,  2  East's  P.  C.  501. 

If,  by  an  actual  severance,  all  internal  communication  be  cut  off,  tlie  partitions  become 
distinct  houses,  so  that  if  one  house  is  divided  to  accommodate  the  families  of  two  part- 
ners, though  the  rent  and  taxes  of  the  whole  are  paid  out  of  tlie  common  fund,  each 
part  will  be  regarded  as  a  mansion.  R.  v.  Jones,  1  Leach,  537.  2  East's  P.  C.  504. 
Tracy  v.  Talbot,  Salk.  532.  ■  . 

But  a  house,  the  joint  property  of  partners  in  trade,  in  which  their  business  is  carried 
on  may  be  described  as  the  dwelling-house  of  all  the  partners,  though  only  one  of  the 
partners  reside  in  it.    Rex  v.  Athea,  R  Sf  M.  329. 

Where  inmates  have  several  rooms  in  a  house  of  whicli  they  keep  the  keys  and  inhabit 
them  severally  with  their  families,  yet  if  they  enter  at  one  outer  door  with  the  owner, 
these  rooms  cannot  be  said  to  be  the  dwelling-houses  of  the  inmates,  but  the  indictment 
ought  to  be  for  breaking  the  house  of  tlie  owner.  But  if  the  owner  inhabits  no  part  of 
the  house,  or  even  if  he  occupy  a  shop  or  a  cellar  in  it,  but  do  not  sleep  therein,  the 
apartments  of  such  shall  be  considered  as  their  respective  dwelling-houses.  CarreWs 
case,  1  Leach,  237.     Trapshaw's  case,  1  Leach,  427.  and  see  1  Hawk,  c.  38.  s.  26. 

If  the  owner  who  lets  out  apartments  in  his  house  to  other  persons,  sleep  under  the 
same  roof,  and  have  but  one  outer  door  common  to  him  and  his  lodgers,  who  are  only  in- 
mates,  all  their  apartments  are  parcel  of  the  one  dwelling-house  of  the  owner.  Kel.  84. 
But  if  the  owner  do  not  lodge  in  the  same  house,  or  if  he  and  the  lodgers  enter  by  differ- 
ent outer  doors,  the  apartments  so  let  out  are  the  mansion  for  the  time  being  of  each 
lodger  respectively,  even  though  the  rooms  are  let  by  the  year.    2  East's  P.  C.  505. 

Where  a  servant  of  the  prosecutor  dwelt  in  a  part  of  the  house,  and  the  rest  (excepting 
the  shop)  was  let  off  to  lodgers ;  the  judges  held  tliat  tiie  shop,  which  was  in  the  prose- 
cutor's occupation,  was  properly  described  as  the  dwelling-house  of  the  prosecutor.  Rex 
V.  Gibbons,  Russ.  Sf  Ry.  442. 

Where  the  prosecutor  having  a  dwelling-house  with  a  shop  adjoining  it,  with  sepa- 
rate entrances  from  the  street,  but  the  shop  having  a  back  door  into  a  passage  in  the 
house,  let  the  shop  to  his  son,  who  used  it  as  a  place  of  business  only,  and  did  not  reside 
there;  a  burglary  having  been  committed  in  the  shop,  the  judges  held  that  it  was 
properly  described  in  the  indictment  as  the  dwelling  of  the  father.  Rex  v.  Seytorif 
Russ.  Sf  Ry.  202. 

If  the  owner  let  off  a  part,  but  do  not  dwell  in  the  part  he  reserves  for  himself,  then 
the  part  let  off  is  deemed  in  law  the  dwelling-house  of  the  party  who  dwells  in  it,  whe- 
ther it  communicates  internally  with  the  oilier  part  or  not ;  but  the  part  he  has  reserved 
for  himself  is  not  tiie  subject  of  burglary,  it  is  not  his  dwelling-house,  for  he  does  not 
dwell  in  it,  nor  can  it  be  deemed  the  dwelling-house  of  the  tenant,  for  it  forms  no  part  of 
his  lodging.  1  Leach,  89,  237,  437. 

Where  the  coachman  rented  the  loft  over  a  coach-house  and  stables,  and  he  and  his 
family  resided  in  it,  a  burglary  committed  in  it  was  liolden  to  be  well  laid,  to  have  been 
committed  in  the  dwelling-house  of  the  coachman.  Rex  v.  Turner,  1  Leach,  305. 

The  governor  of  the  workhouse  at  Birmingham,  under  a  contract  for  seven  years,  with 
the  guardians  and  overseers  of  that  place,  occupied  and  dwelt  in  the  governor's  house 
with  the  exception  of  one  room,  whicii  the  guardians  and  overseers  reserved  for  them- 
selves as  an  office,  and  three  other  rooms  as  store  rooms:  the  clerk  of  the  guardians  and 
overseers  kept  one  key  of  the  office,  the  governor  another,  for  the  purpose  of  securing 
the  effects  in  case  of  fire,  and  the  room  was  cleaned  and  taken  care  of  by  the  governoi''8 


HISTORIA  PLACITORUM  CORONiE.  557 

And  so  it  is,  if  t/^.  comes  to  the  inn  of  B.  and  there  hath  a  chamber 
appointed  for  liis  lodging,  and  this  chamber  is  broken  up  burglarily, 
it  shall  suppose  it  to  be  domus  tJiansionalis  o{  B.ihe  inn-keeper,  be- 
cause the  interest  is  in  him,  and  Ji.  hath  only  the  use  of  it  for  his 
lodging,  without  any  certain  interest. 

A  tent  or  booth  in  a  fair  or  market  is  not  such  a  domus  mansio' 
nalis,  wherein  burglary  may  be  committed,  but  robbery  therein  com- 
mitted, the  owner,  his  wife  or  servants  being  therein,  is  specially 
exempted  from  clergy  by  the  statute  of  5  S^  6  E.  6.  cap.  9.  before 
mention'd.   Co.  P.  C.  p.  64. 

If./?,  have  a  shop  parcel  of  his  mansion-house,  and  it  be  broken 
open  m  the  night,  S^c.  it  is  a  burglary,  and  the  indictment  shall  sup- 
pose, that  he  brake  and  entred  donium  mansionalem  of  A.  for  it  is 
parcel  thereof. 

But  if  .^.  let  the  shop  to  B.  for  a  year,  and  B.  holds  it,  and  works 
or  trades  in  it,  but  lodgeth  in  his  own  house  at  night,  and  this  shop 


servant,  this  office  being  broken  and  entered  in  the  night  time,  ten  of  the  judges  held 
that  it  could  not  be  described  as  the  dwelling-house  of  the  governor.  Rex  v.  Wilson, 
Russ.  Sf  Ry.  l\5. 

So  where  the  owner  of  a  dwelling-house,  warehouse,  and  counting-house  within  the 
same  curtilage,  let  his  <lvvelling-house  to  his  warehouseman,  at  a  yearly  rent,  the  count- 
ing-house and  wureliouse  being  broken  and  entered  in  the  night  time,  the  judges  heJdt 
that  this  was  not  burglary,  that  tlie  counting-house  and  warehouse  could  not  be  described' 
as  the  dwelling  house  of  the  master,  because  the  dwelling-house  was  occupied  by  the 
warehouseman  as  tenant  and  not  as  servant,  nor  could  they  be  described  as  the  dwelling- 
house  of  the  tenant,  for  they  formed  no  part  of  his  holding.  Rex  t.  Jarvis,  R.  Sf  M.  Sea 
R.  v.  Smythe,  5  Car.  Sf  F.  202. 

If  the  owner  let  the  whole  of  a  dwelling-house,  retaining  no  part  of  it  for  his  or  his 
family's  dwelling,  the  part  each  tenant  occupies  and  dwells  in  is  deemed  in  law  to  be  the 
dwelling-house  of  each  tenant,  whether  the  parts  holden  by  the  respective  tenants  commu- 
nicate with  each  other  internally  or  not.  Thus,  where  the  owners  of  a  house  divided  a  shop 
into  two  by  a  partition,  each  having  a  door  opening  into  the  street,  and  let  one  of  them 
and  some  rooms  in  the  house  to  Choice,  and  the  other  with  the  remainder  of  the  house, 
to  Ryan,  at  the  end  of  each  shop  was  a  door  opening  into  a  common  passage  that  led  to 
one  common  staircase.  Choice  paid  i^lOO  a  year,  and  the  taxes  for  the  whole  house,  for 
his  part.  Ryan  paid  £80  a  year  for  his :  each  had  his  separate  family,  separate  kitchen, 
&.C.;  but  the  rooms  occupied  by  each  opened  on  the  common  staircase  above-mentioned. 
Upon  an  indictment  for  burglary,  it  appeared  that  the  prisoner  entered  at  the  window  of 
the  common  staircase,  unlocked  the  door  of  Ryan's  shop,  and  entered  it.  The  judges 
held,  that  the  place  was  rightly  described  in  the  indictment  as  the  dwelling-house  of 
Ryan.  Rex  v.  Baily,  R.  ^  M.  23. 

One  Richards  let  her  dwelling-house  to  her  son  Josiah,  and  a  warehouse  communicat- 
ing internally  with  the  dwelling-house  to  Josiah  and  his  younger  brother,  at  a  separate 
rent.  Josio/t  lived  in  the  dwelling-house,  and  constantly  used  the  communication  between 
that  and  the  warehouse,  both  brothers  carried  on  tiieir  joint  business  in  the  wareiiouse : 
the  warehouse  being  broken  and  entered  in  the  night  time,  the  judges  held  that  it  could 
not  be  deemed  a  part  of  the  dwelling-house,  as  the  dwelling-house  was  holden  under  a 
demise  to  Josiah  alone,  and  he  alone  dwelt  in  it,  and  the  warehouse  was  holden  under  a 
distinct  demise  to  liimself  and  his  brother.  Rex  v.  Jenkins,  R.  Sf  R.  244. 

Where  a  lodger  occupied  a  sleeping-room  on  the  first  floor  and  a  workshop  in  the 
attic,  and  the  rest  of  the  house  was  occupied  by  other  lodgers,  a  burglary  in  the  work- 
shop was  holden  by  the  judges  to  be  well  laid,  to  have  been  committed  in  the  dwelling, 
house  of  the  lodger  who  rented  it.  Rex  v.  Carrell,  1  Leach,  237. 

A  man  cannot  be  indicted  for  burglary  in  his  own  house;  therefore,  if  the  owner  of  a 
house  break  and  enter  into  the  room  of  his  lodger,  and  steal  his  goods,  he  can  only  be 
convicted  of  the  larceny.  Kel.  84.  2  Easfs  P.  c'^  ^Q2,  506. 


557  HISTORIA  PLACITORUM  CORONA. 

is  broken  open,  S,'C.  the  indictment  cannot  be,  that  domum  mansin- 
nalem  oi  A.fregit,  for  it  was  severed  by  tlie  lease  daring  the  time, (a;) 
but  then  whether  he  may  be  indicted  for  bnrglary  as  in  the  domus 
mansionalis  of  B?  and  certainly  it  is  agreed  on  all  hands,  if  B.  or 
his  servant  sometimes  lodge  in  the  shop,  it  is  burglary,  and  it  shall  be 
supposed  domtis  mansionalis  of  B.  and  this  is  common  experience. 
But  suppose  he  never  lodges  there,  but  only  works  or 
\_  558  ]  trades  therein  in  the  day  time,  and  he  or  his  servants  never 
lodge  there  at  night,  whether  this  be  a  burglary  to  break 
and  enter  this  shop  to  commit  a  felony? 

And  certainly  it  was  in  this  case  antiently  held  burglary,  M  37  Sf 
38  Eliz.  B.  R.  Calebs  ca§e,(m)  an  indictment,  quod  shopam  cujus- 
dam  Ricardi  burglarittr  et  felonict  f regit  <§•  intravit  (§'C.  it  was  ad- 
mitted, for  the  matter,  by  the  court  of  king's  bench  to  be  good ;  but 
doubted,  whether  it  was  good,  because  it  was  cujusdum  Ricardi 
without  mentioning  his  sirname,  and  with  this  also  agrees  my  lord 
Coke  in  terminis,  Co.  P.  C.  p.  64.  in  these  words.  But  a  shop  lohere- 
in  any  person  doth  converse,  being  parcel  of  a  mansion-house  or 
not  parcel,  is  taken  for  a  mansion-house. 

But  7!  17  Juc.  Hut  ton'' s  Rep.  33.  it  is  ruled  to  be  no  burglary  to 
break  open  such  a  shop,  and  accordingly  the  practice  hath  always 
gone  at  Newgate  sessions  since  my  time  or  observation,  and  to  this 
day  it  is  holden  no  burglary  to  break  open  such  a  shop;  but  if  the 
shop  keeper,  or  his  servant,  usually  or  often  lodge  in  the  shop  at 
night  it  is  then  donius  mansionalis,  m  which  a  burglary  may  be 
committed. 

Domus  mansionalis  doth  not  only  include  the  dwelling-house, 
but  also  the  out-houses,  that  are  parcel  thereof,  as  barn,  stable, 
cow-houses,  dairy-houses,  if  they  are  parcel  of  the  messuage,  tho 
they  are  not  under  the  same  roof,  or  joining  contiguous  to  it;  and 
therefore,  if  such  stable  or  out-house  belonging  to  the  dwelling- 
house  be  broken-  open  in  the  night-time  with  intent  to  steal,  it  is  bur- 
glary, and  with  this  agrees  Co.  P.  C.  p.  64,  65.  Dalt.  cap.  99.  p.  254, 
255.  where  for  breaking  open  a  back-house  of  Robert  Castle^s,  eight 
or  nine  yards  distant  from  the  dwelling-house,  only  a  pale  reaching 
between  them,  two  were  arraigned  and  condemned  for  burglary; 
and  so  it  was  agreed  by  all  the  judges  in  the  time  of  chief  justice 
Hydelast  1665,  and  the  law  was  accordingly,  and  the  contrary  prac- 
tice in  one  much  blamed ;  and  altho  it  was  said  by  some,  that  it  had 
not  been  so  used,  and  that  the  statute  of  4  S,^  5  P.  4'  M.  cap.  4.  dis- 
tinguished between  a  dwelling-house  and  a  barn,  yet  at 
[^559  3  length  all  the  judges  agreed,  that  the  felonious  breaking  of 
a  barn,  parcel  of  a  messuage,  to  steal  corn,  was  burglary  ac- 
cording to  my  lord  Coke,  ubi  supra,  and  with  this  agrees  2  E.  6.  B. 
Cor  one  ISO. 

But  if  the  barn,  or  stable,  or  cow-house  be  no  parcel  of  the  mes- 
suage, as  if  a  man  takes  a  lease  of  a  dwelling-house  from  t^.  and  of 

y        Qc)Kel.  84.  (j«)  Mo.  466. 


HISTORIA  PLACITORUM  CORONA.  559 

a  barn  from  B.  or  if  it  be  far  remote  from  the  dwelling-house,  and 
not  so  near  to  it  as  to  be  reasonably  esteemed  parcel  thereof;  as  if  it 
stands  a  bow-shot  off  from  the  house,  and  not  within,  or  near  the 
dirtilage  of  the  chief  house;  then  the  breaking  of  it  is  not  burglary, 
for  it  is  not  dumus  mansionalis,  nor  any  part  thereof. 

An  indictment  that  noctanter  clausum  or  cartilagium  felonice  ^ 
burglaritlr /regit  ad  occidendum  ox  furandum  is  not  good,  and  yet 
22  ^ssiz.  95.  burglary  is  defined  to  break  houses,  churches,  walls, 
courts,  or  gates  in  time  of  pes.ce.{n) 

So  that  by  that  book  it  should  seem,  that  if  a  man  hath  a  wall 
about  his  house  for  its  safeguard,  and  a  thief  in  the  night  break  the 
wall  or  the  gate  thereof,  and  finding  the  doors  of  the  house  open,  he 
enters  into  the  house,  this  is  burglary;  but  otherwise  it  had  been,  if 
he  had  come  over  the  wall  of  the  court,  and  found  the  door  of  the 
house  open;  then  it  had  been  no  burglary. 

5.  To  make  up  burglary,  it  must  not  be  only  to  break  and  enter  a 
house  in  tlie  night-time,  but  either  a  felony  must  be  committed  in  the 
house,  or  it  must  be  to  the  intent  to  commit  a  felony.[12] 

If  the  indictment  be,  quod  domiim  mansioixalem  J.  S.  felonice  4' 
burglariter  fregit  ^'  intravit,  <§•  ad  tunc  <§•  ibidem  certain  goods  of 
J.  S.  felonict  4*  burglariter  furatus  fait,  cepit  «§'  asportavit,  the 
indictment  compriseth  two  offenses,  viz.  burglary  and  felony,  and 
therefore  he  may  be  acquitted  of  burglary,  if  the  case  be  so,  upon 
the  evidence,  and  found  guilty  only  of  the  felony,  and  then  he  shall 
have  his  clergy. 

Or  he  may  be  acquitted  of  the  felony,  but  then  qusere, 
whether  he  can  be  found  guilty  of  the  burglary,  because  [560  J 
tho  where  the  indictment  compriseth  burglary  and  felony, 
the  indictment  is  good,  tho  it  be  not  supposed  in  the  indictment,  that 

(n)  This  was  antiently  understood  only  of  the  walls  or  gates  of  the  city:  vide  Spel- 
mati  tra  verba  burglaria;  if  so,  it  will  not  support  our  author's  following  conclusion, 
wherein  he  applies  it  to  the  wall  of  a  private  house. 


[12]  See  ante,  note  [I]  p.  548.  The  punishment  for  this  offence  in  England  is  now 
regulated  by  7  Will.  IV.  6f  1  Vict.  c.  86,  s.  3,  by  which  it  is  enacted,  "That  whosoever 
shall  be  convicted  of  the  crime  of  burglary  shall  be  liable,  at  the  discretion  of  the  court, 
to  be  transported  beyond  the  seas  for  the  term  of  the  natural  life  of  such  offender,  or 
for  any  term  not  less  than  ten  years,-  or  to  be  imprisoned  for  any  term  not  exceeding 
three  years." 

To  the  punishment  of  imprisonment  may  be  added  hard  labour,  with  or  without  soli- 
tary confinement:  such  confinement  not  exceeding  one  month  at  any  one  time,  nor  three 
months  in  any  one  year.     Id.  sect.  7. 

For  burglary  and  assaulting  with  intent  to  murder,  <fec.  the  offender  shall  suffer 
death.  7  Will.  IV.  Sf  1  Vict.  c.  86,  sect.  2;  see  Reg.  v.  Watkins,  2  Mood.  C.  C.  217; 
Res^.  X.  Polbj,  1  Car.  Sf  Kir.  77. 

For  the  U.  S.  Statutes  see  the  act  of  March  3d,  1825,  sect.  4;  Peters^s  Statutes  at 
Large,  vol.  4,  p.  1U7.  For  the  statutes  of  Massachusetts,  see  Rev.  Stat.  c.  126,  sects.  9, 
10.  For  the  statutes  of  New  York,  see  2  Rev.  Stat.  668,  s.  10,  et  seq.  For  the  statutes 
of  Nero  Jersey,  see  Statutes  of  New  Jersey,  1847,  Tit.  Crimes  and  Piinishnents,  §  33, 
J?.  266.  For  the  statutes  of  Pennsylvania,  see  Act  of  Slst  May,  1718,  Stroud's  Piird. 
144  Gth  Ed.,  155  1th  Ed.  Tit.  Burglary.  For  the  statutes  of  Virginia,  see  1  Rev.  Code, 
eh.  17,  s.  24. 


560  HISTORIA  PLACITORUM  CORONA. 

it  was  ed  intentione  ad  bona  furandiim,  for  the  act  of  theft  being 
charged  at  the  same  time,  it  is  a  sufficient  evidence  of  his  intention ; 
but  when  he  is  acquitted  of  the  felony,  then,  there  being  nothing  ex- 
pressly charged  in  the  indictment,  that  burglariter  /regit,  SfC.  ea 
intentione  ad  bona  ^'c.  felonicl  fiirandufn,  it  stands  single  as  if  the 
indictment  had  been  of  single  burglary,  in  which  case  the  clause  of 
ed  intentione  ad  furandum  ^'C.  had  been  necessary  to  complete  a 
single  burglary.  , 

It  seems  therefore  necessary  in  such  case  not  only  to  charge  him, 
that  in  nocte  S,-  burglariter  <^  felonice  domurn,  8fc.  fregit  &,■'  intra- 
vit,  Sf  bona  S^c.  cepit,  but  also  farther  to  say  ed  iyitentione  ad  bona 
4'  catalla  fyc.  in  eddem  domo  existentia  felonicl  8c  burglariter 
jfurandum,  and  to  add  also  the  particular  felony,  ^  ad  tunc  Sf 
ibidem  unum  scyphuni  argenteum  <§'c.  and  then,tho  he  be  acquitted 
of  the  felony,  the  rest  of  the  indictment  stands  good  against  him  as 
a  simple  burglary,  and  he  may  be  convicted  of  it,  tho  acquitted  of 
the  felony. 

And  I  think  that  as  the  offenses  of  burglary  and  felony  may  be 
joined  in  the  same  indictment,  so  three  offenses  may  be  joined  in  the 
same  indictment,  and  if  he  be  acquit  of  the  one,  he  may  be  con- 
victed of  the  other  two,  and  it  may  be  of  use  to  exclude  a  male- 
factor of  his  clergy  where  the  offense  is  great,  as  namely  for  bur- 
glary, for  felony,  and  for  felony  upon  the  statute  of  5  <§'  6  E.  6. 
cap.  9.  for  there  may  be  an  offense  against  that  statute,  which  will 
exclude  from  clergy,  and  yet  not  amount  to  burglary;  and  the  form 
of  the  indictment  may  run  thus.  Quod  ^.  prima  die  Februarii  anno 
regni  domini  Caroli  &c.  in  nocte  ejusdem  diei  vi  &  arrnis  apud  B, 
felonice  &  burglariter  domum  mansionalem  fregit  &  intravit  ea  in- 
tentione ad  bona  &  catalla  ejusdem  B.  in  eadem  domo  existentia 
felonice  &  burglariter  furandum,  capiendum  &  asportandum,  &  ad 
tunc  &  ibidem  vi  &  armis  unum  scyphum  argenteum  ejusdem  B.  in 
eadem  domo  existentem  felonice  &  burglariter  furatus  fuit,  cepit  & 
asportavit,  ipso  B.  ac  uxore,  liberis  &  famulis  suis  in  eadem  domo 
tunc  existentibus,  contra  pacem,  &c. 

And  note,  that  such  an  indictment  need  not  conclude  con- 
[  561  3  tra  formam  statuti,  it  is  sufficient  that  it  brings  the  case  so 
within  the  statute,  as  to  exclude  clergy;  and  so,  upon  the 
statute  of  23  H.  8.  cap.  1. 

And  upon  this  indictment,  if  it  falls  out  upon  the  evidence  that  he 
is  guilty  of  the  burglary,  but  not  guilty  of  the  stealing,  he  may  be 
convict  of  the  burglary,  and  so  ousted  of  clergy,  tho  he  be  found  not 
guilty  of  the  felony :  again,  tho  he  be  found  not  guilty  of  the  burglary, 
because,  it  may  be,  the  breach  of  the  house  was  in  the  day-time,  the 
dweller,  his  wife  or  servants  in  the  house,  yet  he  may  be  found  guilty 
of  the  felony  within  the  qualifications  contain'd  in  the  indictment 
pursuant  to  the  statute  of  5  <^  6  ^.  6.  and  so  ousted  of  his  clergy,  for 
that  is  not  confined  either  to  the  day  or  night:  again,  if  upon  the 
evidence  it  appears  not  to  be  burglary,  because  done  in  the  day-time, 
nor  yet  felony  so  qualified  as  is  excluded  from  clergy,  because  either 


HISTORIA  PLACITORUM  CORONA.  561 

there  was  no  act  of  breaking,  or  if  there  were,  yet  the  dweller,  his 
wife  or  servants  were  not  in  the  house,  he  may  be  convict  of  common 
larciny,  and  so  have  benefit  of  clergy. 

And  so  much  for  burglary  joined  with  larciny. 

Simple  burglary  is  where  the  breaking  and  entering  is  ed  inten- 
tione  ad  bona  4'  catalla  furandum,  or  ad  inlerjiciendnni,  4'C.  and 
this  clause,  as  it  is  usually  added  in  cases  of  simple  burglary,  so  it  is 
necessary,  and  hereupon  these  things  are  observable. 

1.  That  altho  the  breaking  and  entring  be  charged  to  be  done 
burglariter,  yet  if  the  intention  of  that  entry  be  either  laid  in  the 
indictment,  or  appears  upon  the  evidence  to  be  to  the  intent  only  to 
commit  a  trespass  and  not  a  felony,  as  eel  intenlione  ad  ipsuni  A.  ad 
tunc  Sf-  ibidem  verberandum.,  it  is  no  burglary,  but  it  must  be  laid 
and  proved  to  be  ed  intentione  to  steal  or  to  kill,  or  to  commit  some 
other  felony,  for  tho  the  killing  or  murder  may  be  the  consequence 
of  beating,  yet,  if  the  primary  intention  were  not  to  kill,  the  intention 
of  beating  will  not  make  burglary.  Co.  P.  C.  p.  65.  13  H.  4.  7.  6.[13] 

2.  That  if  a  man  in  the  night  break  and  enters  a  house  to  the  in- 
tent to  commit  a  felony,  tho  he  attains  not  that  intent,  but 

takes  or  steals  nothing,  this  is  burglary,  and  excluded  from  [  562] 

clergy.  22  Assiz.  39  <§-  95.  Dy.  99.  Crompt.  31.  a.  Coron. 

264.  Slamf.  P.  C.  p.  30,  a.  Co.  P.  C.  p.  63.  and  herein  it  differs  from 

robbery. 

3.  It  seems,  that  the  intention  to  commit  a  felony  to  make  a  burg- 
lary must  be  an  intention  of  such  a  fact,  as  was  felony  by  the  com- 
mon law  (and  not  of  a  felony  newly  made  by  act  of  parliament,)  as 
larciny,  or  homicide. 

It  hath  been  therefore  doubted,  whether  the  breaking  of  a  house  in 
the  night  with  intent  to  commit  a  rape  be  burglary  or  not,  Crompt. 
fol.  32.  thinks  it  is  not,  because,  made  felony  by  the  statute  of  Westin. 
2.  cap.  34.;(;j)  but  Dalt.  cap.  99.  p.  255.{q)  thinks  it  would  be  burg- 
lary; because,  rape  was  felony  by  the  common  law,  until  the  statute 
of  fVestm.  1.  cap.  13.(r)  which  turned  it  into  a  trespass  punishable 
by  two  years  imprisonment,  and  so  the  statute  of  Westm.  2.  was  but 
a  restitution  of  the  common  law,  and  a  setting  aside  of  the  statute  of 
Westm.  1.  and  this  seems  to  be  the  more  warrantable  opinion  that  it 
is  burglary;  but  of  this  hereafter. 

Now  as  to  clergy  in  case  of  burglary. [14] 

If  it  be  such  a  burglary,  as  is  also  joined  with  actual  theft  or  rob- 
bery, and  that  robbery  or  theft  be  so  laid  in  the  indictment,  and 
proved  upon  evidence,  as  answers  the  statute  of  23  H.  8.  cup.  1.  or 
1  E.  6.  cap.  12.  or  5  (§'  6  E.  6.  cap.  9.  whereof  enough  hath  been  said 
before,  then  the  principal  in  such  burglary  is  in  those  cases,  which 

(/>)  2  Co.  Instit.  433.  (5)  New  Edit.  p.  489.  (r)  2  Co.  Inst.  180. 

[13]  Rex  V.  Knight,  2  East's  P.  C.  510;  Id.  513;  Rex  v.  Smith,  R.  Sf  R.  417;  Res 
V.  Brice,  Id.  450  ;   The  State  v.  Eaton,  3  Harringt.  R.  554. 

[14]  See  ante  note  at  p.  519. 


562  HISTORIA  PLACITORUM  CORONA. 

are  within  those  statutes,  ousted  of  his  clergy,  and  the  accessaries 
^before  are  ousted  of  their  clergy  by  the  statute  of  4  Sr  5.  P.  8f-  M.  cap. 
4.  but  the  accessaries  after  have  their  clergy,  as  hath  been  said;  but 
in  case  of  simple  burglary,  or  burglary  with  theft,  laid  to  be  only 
felonice  Sj'  burglariter,  the  principal  is  ousted  of  clergy  if  outlawed 
or  convict  by  verdict  or  confession,  but  is  not  ousted  of  crergy  in  case 
of  standing  mute,  not  directly  answering,  or  challenging  above  twenty, 
by  the  statute  of  18  Eliz.  cap.  7.{s) 

But  by  the  statute  of  1  E.  6.  cap.  12.  "If  the  breaking  of  the 
house  be  in  the  day,  or  night  time  with  intent  to  rob  or 
[[  563  ]  steal,  any  person  being  in  the  house  and  put  in  fear,  tho 
nothing  be  stolen,  yet  he  shall  be  ousted  of  his  clergy,  if  con- 
vict by  verdict  or  confession,  or  stand  mute,  or  challenge  peremp- 
torily above  twenty ;"(/)  for  this  statute  extends  to  this  special  kind 
of  burglary,  11  Co.  Rep.  36.  h.  Poulter^s  case,  tho  nothing  be  stolen, 
and  so  differs  from  the  statutes  of  23  and  25  H.  8.  which  require  a 
stealing,  as  well  as  a  breaking  the  house. 

But  tho  in  case  of  robbery  in  any  dwelling-house,  and  therewith 
putting  in  fear,  according  to  the  statute  of  23  H.  8.  cap.  1.  or  with- 
out putting  in  fear  according  to  the  statute  of  5  (§'  6  E.  6,  cap.  9- 
the  malicious  commanding,  hiring  or  counselling  of  such  offense  is 
put  out  of  clergy,  if  so  specially  laid  in  the  indictment,  Dy.  183.  b. 
by  the  statute  of  4  <§'  5  P.  Sf'  M.  cap.  4.  yet  such  accessaries  before, 
are  not  oust  of  clergy  in  case  of  breaking  a  house  to  commit  a  rob- 
bery putting  in  fear,  tho  the  principal  be  ousted  of  clergy  by  1  Eliz. 
cap.  12. 

But  accessaries  before  or  after  are  not  ousted  of  clergy  by  this 
statute,  or  the  statute  of  4  (§•  5  P.  4*  M.  cap.  4. 

And  this  statute  doth  oust  of  clergy  not  only  those  that  actually 
break,  or  actually  enter  the  house,  but  also  all  those  that  are,  in  law, 
principals  in  burglary,  all  those  that  are  present,  aiding  and  assist- 
ing, or  that  stand  to  watch  at  the  field-gate,  while  the  others  of  the 
confederacy  or  company  break  and  enter  the  house. 

And  so  it  differs  from  the  case  of  robbing  of  a  person  in  his  dwell- 
ing-house, none  being  within,  upon  the  statute  of  39  Eliz.  cap.  15. 
for  that  statute  excludes  from  clergy  only  those  persons  that  actually 
enter  into  the  house,  and  not  those  who,  tho  of  the  confederacy,  and 
present  aiding  and  abetting,  yet  never  entered  the  house;  quod  vide 
supra. 

But  as  to  accessaries  before  or  after^  they  are  not  ousted  of  their 

clergy  by  the-  statute  of  IS  Eliz.  cap.  7.  nor  doth  the  statute  of 

4  <5'  5  P.  <§*  M.  extend  to  oust  accessaries  before  of  clergy 

[564]  in  cases  of  burglary ;(w)  but  in  cases  of  robbing  of  houses 

within  the  qualifications  and  circumstances  of  the  statute 

(«)  This  defect  is  supplied  by  3  ^  4  W.  S(  M.  cap.  9. 

{t)  This  statute  does  not  exclude  those  who  challenge  peremptorily  above  twenty; 
this,  according  to  our  author's  opinion,  {vide  postea,  Lib.  II.  cap,  48.)  was  needless;  but 
they  are  since  excluded  by  3  i'^  4  W.  8(  M.  cap.  9. 

(«)  But  they  are  since  ousted  hy  3  Sf  i  W.  ^  M.  cap.  9. 


HISTORIA  PLACITORUM  CORONA.  564 

of  23  H.  8.  cap.  1.  or  ^  ^-  %  E.  6.  cap.  9.  and  not  to  burglary  at 
large. (j-) 

And  thus  far  concerning  larciny,  robbery  and  burglary, 
which  are  felonies  by  the  common  law.  [|  565  J 

(x)  Since  our  author  wrote,  there  have  been  otlier  statutes  made  to  take  away  clergy 
in  cases  of  larciny  committed  in  dwelling-houses,  &c. 

By  3^-4  W.  <Sf  M.  cap.  9.  "  Clergy  is  ousted  from  those  who  shall  feloniously  take 
away  any  goods  in  any  dwelling-house,  any  person  being  therein  and  put  in  fear,  or 
shall  rob  any  dwelling-house  in  the  day-time,  any  person  being  therein;  or  shall  comfort, 
aid,  counsel  or  command  any  person  to  commit  any  of  the  said  offenses,  or  to  break  any 
dwelling-house,  shop  or  warehouse  thereto  belonging,  and  therewith  used  in  the  day- 
time, and  feloniously  to  take  away  any  money  or  goods  to  the  value  of  five  shillings, 
altho  no  person  be  within  such  dwelling-house,  &c.  or  shall  counsel,  hire  or  command 
any  person  to  commit  any  burglary,  if  they  be  convicted,  stand  mute,  or  challenge 
peremptorily  above  twenty." 

The  design  of  this  clause  was  to  deprive  the  accessaries  before  of  the  benefit  of  the 
clergy ;  but  this  statute  not  mentioning  booths  nor  out-houses,  leaves  the  accessaries  in 
such  cases  to  their  clergy. 

The  same  statute  enacts,  "  That  persons  indicted  for  a  crime,  of  which  being  convict 
they  should  not  have  their  clergy  by  any  former  statute,  shall  not  have  it  if  they  stand 
mute,  or  will  not  answer  directly,  or  challenge  peremptorily  above  twenty,  or  be  out- 
lawed. 

"  Persons  indicted  of  felony  for  stealing  of  goods,  «Stc.  if  convicted,  stand  mute,  will 
not  directly  answer,  or  challenge  peremptorily  above  twenty,  shall  lose  their  clergy, 
if  it  appears  upon  evidence  or  examination,  that  the  goods  were  taken  in  another  county 
in  sucii  a  manner,  whereof,  if  convicted  by  a  jury  of  that  county  they  should  not  have 
their  clergy." 

This  part  of  the  statute  helps  the  several  former  acts,  which  were  defective  either  as 
to  the  point  of  standing  mute,  or  challenging  peremptorily,  or  being  outlawed. 

By  10  4"  11  IF.  3.  cap,  23.  "All  persons,  who  by  night  or  by  day  shall  in  any  shop, 
ware  house,  coach-house  or  stable  privately  and  feloniously  steal  any  goods,  wares  or 
merchandizes  of  the  value  of  five  shillings,  or  more,  tho  such  shop,  &c.  be  not  broke 
open,  and  tho  the  owner,  or  any  other  person  be  not  therein,  or  that  shall  assist,  hire  or. 
command  any  person  to  commit  such  offense,  being  thereof  convict  or  attainted  by  ver- 
diet  or  confession,  or  being  indicted  thereof  shall  stand  mute,  or  challenge  above  twenty, 
shall  be  excluded  from  the  benefit  af  clergy." 

The  uses  of  this  statute  are  these, 

1.  By  the  former  statutes  (except  the  case  of  a  booth  in  a  fair  or  market,  by  5  &  6 
E.  6.)  it  was  necessary,  in  order  to  take  away  clergy,  that  the  robbery  should  be  in  a 
dwelling-house,  whereas  this  statute  extends  to  shops,  ware-houses,  &c.  tho  they  should 
not  be  adjoining  to,  or  be  any  part  of,  a  mansion-house. 

2.  The  former  statutes  required  there  should  be  an  actual  breaking  or  putting  in  fear, 
otherwise  it  would  not  be  a  robbery,  which  is  the  stealing  intended  by  39  Eliz.  cap.  15. 
as  appears  from  the  preamble  of  that  statute;  but  by  this  statute,  if  the  goods  stolen  be  of 
the  value  of  five  shillings,  the  offender  is  ousted  of  clergy  as  to  a  shop,  ware-house, 
coach-house,  or  stable,  tho  there  be  no  breaking  or  putting  in  fear. 

3.  By  23  H.  8.  and  1  E.  6.  clergy  was'  not  taken  away,  unless  there  were  some  per- 
son in  the  house  put  in  fear,  nor  by  5  &,  6  £.  6.  unless  some  of  the  family  were  in  the 
house  or  booth ;  nor  by  39  Eliz.  unless  it  were  in  the  day-time,  and  no  person  in  the 
liouse;  so  that  if  the  offence  were  committed  when  any  person  was  in  the  house,  if  not 
put  in  fear,  nor  one  of  the  family,  or  when  no  body  was  in  the  house,  if  it  were  in  the 
night-time,  in  neither  of  those  cases  was  clergy  taken  away  by  those  statutes;  but  this 
statute  takes  it  away  in  both  those  cases  as  to  shops,  &c. 

But  still  this  statute  omitted  to  mention  dwelling-houses  or  out-houses,  wherefore,  to 
supply  this  omission,  another  statute  was  made,  viz. 

12  Ann.  cap.  7.  by  which  it  is  enacted,  "That  if  any  person  shall  feloniously  steal  any 
money,  goods,  or  chatties,  &c.  of  the  value  of  forty  shillings  in  any  dwelling-house  or 
out-house  thereto  belonging,  altho  it  be  not  broken,  nor  any  person  therein,  or  shall  assist 
any  person  to  commit  such  offense,  and  shall  be  convicted  by  verdict  or  confession,  or 
stand  mute,  or  will  not  answer  directly,  or  shall  challenge  peremptorily  above  twenty,  he 
shall  be  debarred  from  the  benefit  of  clergy."      See  ante,  note  at  p.  519^ 

But  both  these  statutes  seem  defective  as  to  persons  outlawed. 


565  HISTORIA  PLACITORUM  CORONA. 

There  are  two  exceptions,  that  are  added  hereunto; 

1.  The  first  is  really  true,  namely  when  it  is  tempus  belli  within 
the  kingdom,  and  one  enemy  either  steals,  robs,  or  plunders  the  house 
or  goods  of  another,  and  therefore  the  book  of  22  */issiz.  95.  adds  to 
the  definition  of  burglary  in  time  of  peace,  for  in  time  of  war,tho  these 
kinds  of  offenses  committed  by  those  of  the  same  party,  or  those  that 
are  not  in  hostility  one  to  another  are  felonies,  yet  in  time  of  war, 
when  done  by  an  enemy,  they  put  on  another  name,  as  acts  of  hos- 
tility, misprisions,  and  the  Hke. 

Jiisque  datum  sceleri. 

2.  The  second  is  only  supposititious,  namely  when  it  is  done  in 
case  of  necessity,(3/)  as  a  poor  person  that  in  case  of  necessity  for 
hunger  shall  break  and  enter  a  house  for  victuals  under  the  value  of 
twelve-pence,  which  is  added  as  an  exception  to  burglary,  by  Crompt. 
fol.  33.  a.  and  Dalt.  cap.  99.  p.  255,  256  (c)  for  tho  I  do  agree  a 
judge  ought  to  be  tender  in  such  cases,  and  use  much  discretion  and 
moderation,  yet  this  must  not  pass  for  law,  for  then  we  shall  in  a  little 
time  let  loose  all  the  rules  of  law  and  government,  and  burglaries, 
robberies,  yea  murders  themselves  shall  be  excusable  under  pretense 
of  necessity,  and  we  shall  fall  within  the  wild  doctrine  of  the  Jesuiti- 
cal casuists,  who  of  late  in  France  and  elsewhere,  upon  those  general 
misapplied  maxims  of  Quicquid  necessitas  cngit,  defendit,  and  in 

casu  extreme  necessitatis  om,nia  sunt  commu7iia,  have. 
[]  566  ~\  advised  servants  and  apprentices,  that  it  is  lawful  in  point 

of  conscience  to  steal  from  their  masters,  or  rob  them  in  case 
they  make  them  not  sufficient  allowances  of  meat,  drink,  or  clothes : 
where  laws  are  settled,  there  are  other  remedies  appointed  for  the 
I'elief  of  servants  against  oppressing  masters,  and  of  the  poor,  by 
complaint  to  the  magistrates  without  violating  the  established  laws 
of  kingdoms  or  states.(*) 

{y)  See  Grot,  de  jur.  belli  ac  pads,  Lib,  II.  cap.  2.  §§  6  &  7. 

(z)  New  Edit.  p.  489. 

(*)  What  our  author  here  observes  is  undoubtedly  true,  that  the  plea  of  necessity  ought 
not  in  such  cases  to  be  allowd,  and  the  reason  is,  because  the  law  supposes,  that  no  man 
can  in  a  well  governd  coinroonwealth  be  driven  to  such  a  necessity ;  this  supposition  i^ 
the  more  reasonable  in  England,  where  there  are  so  many  laws,  and  such  large  sums 
yearly  collected  for  the  relief  of  the  poor,  as  are  more  than  sufficient  for  that  purpose,  if 
rightly  applied;  yet  such  is  the  neglect  in  the  execution  of  those  laws,  that  it  were  to  be 
wished  some  expedient  were  found  out  to  render  that  relief  more  speedy  and  effectual, 
lest,  while  the  necessity  be  real,  the  relief  be  only  supposititious,  which  our  author  himself 
tliought  was  oil-times  tiie  case,  notwithstanding  the  provisions  of  the  law ;  {see  his  preface 
to  his  discourse  touching  the  provision  for  the  poor,)  which  makes  it  reasonable  it  should 
be  allowed  as  an  argument  for  mercy,  tljo  not  as  a  plea  in  justification. 


HISTORIA  PLACITORUM  CORONiE.  566 

CHAPTER  XLIX. 

OP    ARSON,    OR    WILFUL    BURNI:NG    OF    HOUSES. 

The  felony  of  arson  or  wilful  burning  of  houses  is  described  by  my 
lord  Coke,  cap.  15.  p.  66.' to  be  the  malicious  and  voluntary  burn- 
ing the  house  of  another  by  night  or  by  day. 

This  was  felony  at  common  law,(«)  and  one  of  the  highest  nature, 
and  therefore  by  the  statute  of  Westm.  1.  cap.  15.  such  offenders 
were  not  replevisable;(6)  and  by  Brilon{c)  the  offenders  herein  were 
burnt  to  death,  but  as  to  that  the  law  is  changed,  they  are  to  be 
hanged.  H.  7  E.  2.  Coram  liege  Rot.  88.  Norf.{d) 

By  the  statute  of  8  H.  6.  cap.  6.  dispersing  of  bills  of 
menace  to  burn  houses,  if  money  be  not  laid  down  in  a  cer-  []  567  ] 
tain  place,  was  made  high  treason,  if  the  houses  were  burned 
accordingly:  vide  Rot.  Par.  15  H.  6.  n.  23.  but  as  to  the  treason  it 
is  repeald^y  the  statute  of  1  E.  6.  cap.  12.  and  1  Mar.  cap.  1.  but 
the  felony  remains  still  in  case  the  houses  be  burned. (e)  [1] 

In  cases  of  wilful  burning  of  houses  the  indictment  runs,  Quodfe- 
lonice,  voluntarih  <§•  malitiosh  com,bussit  dornum  without  saying 
domum  ynansionalem,,  as  in  case  of  burglary.   Co.  P.  C.p.  67. 

And  to  examine  this  felony   these    things    are   inquirable,  viz. 

(a)  3  H.  7.  10.  a.  (b)  2  Co.  Instil.  188.  (c)  cap.  9. 

■'  (d)  By  the  laws  of  Elhelstan  it  was  capital,  incendiariis  capitis  paena  esto;  vide  Leg. 
Ethehtan,  I.  6.  and  by  the  laws  of  Cnute  it  was  one  of  those  capital  offenses  for  which 
no  ransom  was  allowd.  Leg.  Canuti,  Z.  61. 

(e)  But  since  by  the  9  Geo.  I.  cap.  22.  it  is  made  felony  without  benefit  of  clergy, 
knowingly  to  send  any  letter  without  a  name  subscribed,  or  signed  with  a  fictitious 
name  demanding  money,  venison  or  other  valuable  thing.  This  statute  is  amended  by 
Stat.  27,  Geo.  2.  c.  15.  knowingly  to  send  any  letter  without  a  name,  or  with  a  fictitious 
name,  demanding  money,  venison,  or  any  other  valuable  thing,  or  threatening  (without 
any  demand)  to  liill  any  of  the  king's  subjects,  or  to  fire  their  houses,  out-houses,  barns, 
or  ricks,  is  made  felony  without  benefit  of  clergy.  Vide  1  &l8  Geo.  IV.  c.  29,  s.  8.  Archb. 
PL  Sf  Ev.  in  Crim.  Law,  606. 

[1]  The  English  statutes  in  force  at  present  are:  7  Wm.  IV.  Sf  1  Vict.  c.  89.  §  3.  5  &. 
6  Vict.  c.  38.  §  1.  7  &  8  Vict.  c.  62.  §  1,  3,  4.  The  statute  7  &,  8  Geo.  IV.  c.  27,  wholly 
repeals  the  statute  23  Het,.  VIII.  c.  1.  43  Eliz.  c.  13.  22  &  23  Car.  II.  c.  7.  9  Geo.  I. 
c.  22.     (The  Black  Act)  9  Geo.  III.  c.  29  &,  52  Geo.  III.  c.  130;  and  the  statute  9  Geo. 

IV.  c.  31,  wholly  repeals  the  statute  43  Geo.  III.  c.  58.  (Lord  Ellenborough's  Act.)  These 
statutes  do  not  alter  the  nature  of  the  offence,  or  create  any  new  offence,  except  that  they 
extend  to  the  burning  of  other  buildings  than  dwelling-houses,  or  out-houses  parcel  there- 
of. See  Burn's  Just.  Vol.  I.  Tit.  Burning,  Q9th  Ed.  1845.  See  Re^.  v.  Jones,  1  Car.  Sf 
Kir,  303.  2  Mood.  C.  C.  308.  Reg.  v.  England,  1  Car.  Sf  Kir,  533.  Reg.  v.  Paice,  I  Id.  73. 

For  the   United  States  Statutes,  see  the  Act  of  March  3,  1825.  sects.  1,  2. 11,  3  Story's 

V.  S.  Laws,  c.  276.  p.  1999.  Peters's  Statntes  at  Large,  vol.  4,  p.  106. 

For  the  Massachusetts  statutes,  see  Rev.  Stat.  c.  126.  sects.  1,  2,  ,3,  4,  5,  6,  7,  8. 

For  the  New  York  statutes,  seeJiev.  Stat.  657.  sects.  9  &  10.  2  Id.  666.  sects.  1,  2,  3, 
4,  5,  6,  7,  8,  9. 

For  the  statutes  of  New  Jersey,  see  Statutes  of  New  Jersey,  (1847,)  Tit.  "  Crimes  and 
Punishments,'"  p.  265. 

For  the  statutes  of  Pennsylvania,  see  Stroud's  Purd.  Dirr.  Tit.  '■'■  Arson,"  p.  80.  6  Ed. 
p.  83.  1  Ed. 

For  the  statutes  of  Virginia,  see  Rev.  Code,  ch,  171.  sect.  5. 


567  HISTORIA  PLACITORUM  CORONA. 

1.  What  shall  be  said  domiis.    2.  What  domus  of  another.    3.  What 
a  malicious  and  wilful  burning.     4.  What  kind  of  felony  this  is. 
5.  Whether  and  how  clergy  is  allowable. 
1.  What  shall  be  said  domus.\2'\ 


[2]  The  building  in  respect  of  vvhich  the  offence  is  committed,  must  come  within  the 
ordinary  and  estabiisiied  meaning  of  the  words  used  in  the  statutes.  Tlie  mere  using 
the  building  for  a  particular  purpose,  does  not  necessarily  alter  the  nature  of  the  build- 
ing. Elsmore  v.  St.  Briavells,  2  Man.  S(  Ry.  514;  Q  B.  Sj  Cr.  461.  -S.  C.  An  open  build- 
ing  in  a  field,  at  a  distance  from  and  out  of  sigiit  of  the  owner's  house,  though  boarded 
round  and  covered  in.  Rex  v.  Ellison,  Mood.  C.  C.  336 ;  a  cart-hovel,  consisting  of  a  stub- 
bled  roof  supported  by  uprights,  in  a  field  at  a  distance  from  other  buildings,  Rex  v.  Par- 
rntt,  6  Car.  Sf  P.  402  was  held  not  to  be  within  the  statute  of  7  W.  IV.  ^1  Vict, 
c.  89.  But  an  open  shed  in  a  farmyard,  covered  with  straw  as  a  roof,  was.  Rex  v. 
Stallion,  1  Mood.  C.  C.  398;  Rex.  v.  Hvvghton,  5  Car.  Sf  P.  555;  Rex  v.  James,  1  Car. 
Sf  Kir.  303.  A  school-room,  which  was  separated  from  a  dwelling-house  by  a  narrow  pas- 
sage, about  a  yard  wide,  the  roof  of  vvhicli  was  partly  overhung  by  that  of  the  dwelling- 
house,  the  two  buildings,  together  with  some  others,  and  the  court  which  enclosed  them, 
being  rented  by  the  same  person,  wa.s  ruled  to  be  well  described  as  an  out-house.  Rex 
V.  H  inter,  Russ.  Sf  Ry.  295. 

As  to  how  far  the  burning  of  part  of  a  dwelling-house,  &c.  (under  9  Geo.  I.  c.  22.)  may 
be  an  offence,  see  North's  case,  2  EasVs  P.  C.  1021. 

A  common  gaol  was  holden  to  be  a  house  within  the  same  statu||^  Donnevan's 
cases,  2  Bl.  Rep.  682 ;  2  EasVs  P.  C.  1020.  S.  C.  But  where  a  prisoner  set  fire  to  his 
cell,  for  the  purpose  of  effecting  his  escape,  and  such  intent  was  shown,  it  was  held  in 
New  York  not  to  be  arson.  The  People  v.  Cottrell,  18  Johns.  R.  115;  so  also  in  Vir- 
ginia, Com.  V.  Posey,  4  CalVs  R.  109. 

A  cotton-mill  was  held  to  be  within  the  meaning  of  the  9  Geo.  III.  c.  29.  s.  2  ;  Anon. 
2  Russ.  493.  Burning  a  school-house  is  arson  within  the  statutes  of  Connecticut  and 
Maryland.  State  v.  O'Brien,  2  Root  i2.  516 ;  Jones  v.  Huvgerford,  i  G.  Sf  J.  402.  But 
is  no  crime  at  common  law.     Wallace  v.  Young,  5  Monr.  156. 

Cases  in  burglary  are  referred  to  in  the  books  to  settle  what  is  a  dwelling-house,  with 
respect  to  arson.  7  Dane's  Abr.  134;  2  EasVs  P.  C.  1020;  Rex  v.  McDonald,  2  Lew. 
C.  Cas.  46;  2  Russ.  on  Crimes,  489.  note  t 

1.  A  dwelling-house,  at  common  law,  includes  all  buildings,  and  apartments  under  the 
Same  roof,  occupied  with  it  for  any  purpose  whatsoever.  Thus,  a  wash-room  {Burrows's 
case,  Moody's  Cas.  274,)  under  the  same  roof  with  the  main  dwelling,  having  no  internal 
communication  with  it,  was  held  to  be  part  of  it.  And  where  the  principal  dwelling 
and  a  stable,  cow-house,  cotlage,  and  barn  stood  in  a  line  adjoining  each  other  under  the 
same  roof,  in  the  order  of  which  they  are  named,  the  barn  was  part  of  the  dwelling- 
house.     Brown's  case,  2  East,  P.  C.  501. 

2.  A  dwelling-house  includes  all  buildings  and  apartments  under  the  same  roof,  how- 
ever and  by  whomsoever  occupied,  which  have  a  closed  and  covered  communication  with 
it.  Thus  a  son  living  elsewhere  had  a  shop  under  the  same  roof  with  his  father's  house, 
having  a  communication  with  it  through  the  cellar,  and  the  shop  was  held  to  be  part  of 
the  father's  house.  (Sef ton's  case,  R.  S(  R.  102.)  A  tenant  had  a  sleeping-room  on  the 
first  floor  and  a  work-shop  in  the  garret,  {Currell's  case,  1  Leach,  237,)  and  two  tenants 
iiad  each  a  dwelling-house  and  shop  in  the  same  building,  having  a  communication  be- 
tween the  apartments;  the  shop  and  workshop  were  held  to  be  part  of  the  dwelling-house. 
{Rex  V.  Baily,  1  Mood.  23.)  The  same  point  was  also  settled  in  Stock's  case,  R.  Sf  R, 
185;  and  in  Com.  v.  Chevalier,  7  Dane  Abr.  134. 

3.  A  dwelling-house  comprehends  all  buildings  within  its  curtilage  occupied  with  it 
for  any  purpose,  although  not  under  the  same  roof,  nor  adjoining  to  it,  nor  having  any 
closed  or  covered  communication  with  it — as  a  school-room,  {Rex  v.  Winters,  R.  Sf  R, 
295;)  a  warehouse,  {Walter's  case,  Mon.  13;  Lithgo's  case,  R.  <^  R.  357;)  chambers  over 
a  press,  shop  passage  and  lumber-room,  {Rex  v.  Hancock,  R,  ^  R,  170;)  a  workshop, 
{Rex  V.  Chalking,  R.  S^-  R.  334;)  a  goose  house,  {Rex  v.  ilayburn,  R.  S(  R.  360;)  a  barn, 
stable,  cov.'-hous^e,  sliecp-house,  dairy-house,  and  milk-house.    3  Inst.  67. 

4.  It  comprehends  adjoining  buildings,  used  by  its  occupants  for  domestic  purposes, 
although  not  within  the  curtilage.  "All  out-buildings,  as  barns,  stables,  dairy-houses, 
adjoining  the  house,  are  looked  upon  as  part  of  it."  (I  Bac.  Ab.  Burg.  E.)  "Out-houses 
adjoining  to  a  dwelling-house,  and  occupied  as  a  parcel  thereof,  though  there  be  no  com- 


HISTORIA  PLACITORUM  CORONA.  567 

It  extendeth  not  only  to  the  very  dwelling-house,  but  to  all  out- 
houses, that  are  parcel  thereof,  tho  not  contiguous  to  it,  or  under  the 
same  roof;  as  in  case  of  burglary,  the  barn,  stable,  cow-house,  sheep- 
house,  dairy-house,  mill-house.  Co.  P.  C.  p.  67.  11  //.  7.  1.  b.{f) 

(/)  The  words  of  the  book  are,  because  the  ham  was  adjoining  to  the  house,  it  was 
holden  to  be  felony;  to  make  which  serve  our  author's  purpose  we  are  not  to  understand 
(hereby  its  being  contiguous,  but  being  so  near  the  house,  as  to  be  parcel  thereof. 


.  men  enclosure  or  curtilage,  may  still  be  considered  as  parts  of  the  mansion."  (2  East, 
P.  C.  493.)  In  Rex  v.  Brown,  (2  East,  P.  C.  5U1,)  the  principal  dwelling-house,  stable, 
cow-house,  cottage,  and  barn  adjoining  each  other,  were  held  to  be  one  dwelling,  and 
although  the  level  of  the  roof  was  uniform  throughout,  yet  it  is  plain  that  they  were 
distinct  buildings.  But  where  an  occupant  of  a  dwelling-house  occupies  an  adjoining 
building  for  other  than  domestic  purposes,  it  is  not  a  part  of  the  dwelling-house.  This 
was  so  held  in  Egginton''s  case,  (2  Leach,  913;)  the  principal  building  was  a  manufac- 
tory, occupied  by  a  firm,  and  the  dwelling-house  of  one  of  the  partners  was  in  one  of  the 
wings.  As  there  was  no  communication  between  them,  the  manufactory  was  held  to  be 
no  part  of  the  dwelling-house.     See  ante  chap.  48.  p.  556,  note  [II]. 

The  question  whose  house  a  dwelling-house  is  in  respect  to  arson,  has  been  much  dis- 
cussed. In  Holme's  case,  (2  East,  P.  C.  1027,  &  C.  Cro.  Car.  376 ;  &  C.  William  Jones, 
351,)  it  was  held,  that  the  malicious  burning  of  his  own  house  by  a  lessee  for  years, 
whereby  the  buildings  of  others  were  in  danger  of  being  burnt,  was  not  a  felony;  that 
is,  was  not  arson,  but  was  a  high  misdemeanor,  of  which  the  offender  was  convicted, 
and  for  which  he  was  punished  under  an  indictment  for  a  felony.  It  has  been  doubted 
whether  he  ought  to  have  been  convicted  under  such  an  indictment,  but  no  question  has 
been  made  of  his  being  indictable  for  a  misdemeanor.  In  Harris's  case,  (2  East,  1023,) 
Mr.  Justice  Foster  expressed  the  opinion,  that  the  burning  of  a  house  by  the  rever- 
sioner, which  was  occupied  by  a  tenant  under  a  lease,  is  not  the  burning  of  the 
dwelling-house  of  another.  In  tiie  same  case  it  was  held,  that  where  the  widow  was 
entitled  to  dower  to  whom  it  had  not  been  set  off,  and  a  house  which  had  belonged  to 
her  husband  subject  to  a  mortgage,  being  occupied  by  a  lessee,  was  burnt  by  her,  it  was 
arson.  In  Spalding's  case,  (2  East,  P.  C.  1025,  decided  1780,)  after  the  preceding,  it 
was  held  not  to  be  arson  where  the  mortgagor,  being  in  possession,  set  fire  to  his  house, 
for  the  purpose  of  defrauding  insurers,  as  it  was  not  the  dwelling-house  of  another.  See 
Breeme's  case,  (2  East,  P.  C.  1026,  S,  C  1  Leach,  220,)  the  burning  of  his  own  house 
by  a  lessee  for  years,  was  held  not  to  be  arson,  because  it  was  not  the  dwelling-house  of 
another.  In  this  case  arson  is  said  to  be  an  offence  against  the  possession.  In  Ped. 
ley's  case,  (2  East,  1026;  S.  C.  Cald.  218;  1  Leach,  242,  A.  D.  1782,)  it  was  held,  that 
a  house  occupied  under  a  lease  for  three  months,  was  tliat  of  the  lessee.  In  this  case  it 
is  said  also,  that  "arson  is  an  offence  against  the  possession  of  another."  In  Gowan's 
case,  (2  East,  P.  C,  1027,  A.  D.  1786,)  where  a  pauper  burnt  the  house  in  which  he 
was  put  by  the  parish-officers,  for  which  he  paid  no  rent  and  in  which  he  had  no  right, 
it  was  held  to  be  arson;  that  is,  it  was  held  to  be  the  house  of  another:  in  other 
words,  it  was  held  that  the  parish  were  the  occupants.  In  Rickman's  case,  (2  East, 
1034,  A.  D.  1789,)  in  which  the  indictment  did  not  allege  whose  house  was  burnt  by 
the  defendant,  it  was  held  to  be  a  material  omission.  It  .was  a  house  occupied  by 
the  overseers  of  the  poor  for  the  accommodation  of  paupers,  by  one  of  whom  it  was 
burnt,  but  it  was  not  known  in  whom  the  legal  estate  was.  It  was  held  that  it  might 
have  been  alleged  to  be  the  house  of  the  overseers  of  the  poor,  or  of  persons  un- 
known. The  doctrine  as  laid  down  by  Mr.  East,  (P.  C.  vol.  2,  p.  1034,)  is,  that  the 
house  must  be  alleged  in  the  indictment  to  be  that  of  the  person  "  who  may  be  said  to 
occupy  suo  jure."  This  is  precisely  the  doctrine  as  to  burglary,  in  respect  to  which  a 
dwelling-house  is  that  of  the  occupant.  In  a  case  subsequent  to  those  above  cited,  viz. 
{Glavjield's  case,  2  East,  P.  C.  1034,  A.  D.  1791,)  a  dwelling-house  belonged  to  the  oc- 
cupant of  the  house,  and  the  out-buildings  and  farm  also  belonged  to  her,  and  she  also 
occupied  a  part  of  the  out-buildings  with  her  son,  who  separately  occupied  other  out- 
buildings with  tlie  farm,  of  which  he  took  upon  himself  the  sole  management  at  his 
own  risk  of  loss  or  profit.  One  of  the  out-buildings  in  use  of  both,  and  another  in  use  of 
tlie  son  only,  were  burnt.    It  was  held,  that  the  indictment  must  allege  one  building  to 


567  HISTORIA  PLACITORUM  CORONiE. 

But  if  the  barn  or  out-hoiise  be  not  parcel  of  a  dwelling-honse,  it 
is  not  felony,  unless  the  barn  have  hay  or  corn  in  it,(,^)  and  then, 
tho  it  be  no  parcel  of  a  dwelling-house,  it  is  felony,  4  Co.  Rep.  20.  a. 
Barhani's  case;  but  if  the  barn  have  only  hay  in  it,  and  not  corn, 
the  offender  shall  have  his  clergy,  but  if  it  hath  corn  in  it,  he  shall 
be  excluded  of  clergy,  tho  not  parcel  of  a  dwelling-house.  Co.  P.  C. 
p.  69. 

The  burning  of  a  frame  of  a  house  was  no  felony  by  the 
j]  568  ]]  common  law,  but  was  made  felony  by  the  statute  of  37  H.  8. 
cap.  6.  but  that  stands  repeald,  by  1  E.  6.  cap.  12.  and  1  Mar. 
cap.  1.  ' 

The  burning  of  a  stack  of  corn  was  no  felony  by  the  common  law, 
but  the  attempting  of  it  was  made  felony  by  the  statute  of  3  &  4  E.  6. 
cap.  5., (A)  but  that  is  repeald  by  1  Mar.  cap.  l.{i) 

But  by  the  statute  of  43  Eliz.  cap.  13.  the  wilful  and  malicious 
burning  of  any  barn,  or  stack  of  corn,  or  grain  within  the  counties  of 
Nor/ htimber land,  Cumberland,  Westmorland,  or  Eurham, is  made 
felony  without  benefit  of  clergy.(it) 

11.  What  shall  be  said  the  house  of  a7iother.[3'] 

ig)  But  by  22  &,  23  Car.  2.  cap.l,  "  It  is  felony  maliciously  to  burn  in  the  night-time 
any  rick  or  stack  of  corn,  hay  or  grain,  barns  or  other  out-houses,  or  buildings,  or  kilns 
whatsoever."  So  that  now,  tho  the  barn  be  empty,  it  is  felony ;  and  by  9  Geo.  1.  cap.  22. 
clergy  is  taken  away  from  the  offender. 

(A)  This  statute  does  not  make  the  attempt  felony  generally,  but  only  where  divers 
persons  to  the  number  of  twelve  are  assembled  for  that  purpose,  and  continue  together 
for  the  space  of  an  hour  after  proclamation  to  depart,  or  where  any  above  the  number  of 
two,  and  under  twelve,  shall  after  proclamation,  as  aforesaid,  in  a  forcible  manner  at- 
tempt the  same. 

(i)  But  it  is  made  felony  by  22  &  23  Car.  2.  cap.  7.  and  by  9  Geo.  I.  cap.  22.  it  is 
felony  without  benefit  of  clergy  to  set  fire  to  any  house,  barn,  or  out-house,  or  to  any 
hovel,  cock,  mow,  or  stack  of  corn,  straw,  hay  or  wood. 

{k)  By  1  Geo.  I.  cap.  48.  it  is  felony  maliciou?ly  to  set  on  fire  any  wood,  underwood, 
or  coppice.  By  this  statute  clergy  is  not  taken  away;T>ut  by  9  Geo.  I.  cap.  22.  it  is 
felony  without  benefit  of  clergy  to  cut  down  or  destroy  any  trees  planted  in  any  avenue, 
orchard,  garden,  or  plantation.   See  Archb.  Crim.  Law,  Tit,  "  Arson,"^.  312, 10  Lond.  Ed. 

be  the  building  of  both,  and  the  other  to  be  that  of  the  son.  Here  it  was  held,  that  the 
building  was  that  of  the  occupant. 

In  Margaret  WalUs^s  case,  {Moody,  C.  C.  334,  cited  2  Deac.  1496,)  it  was  ruled,  that 
in  an  indictment  for  arson,  a  dwelling-house  may  be  described  as  in  possession  of  the 
actual  occupier,  though  his  possession  be  wrongful.  In  Hohnes^s  case,  {Cro.  Car.  376,) 
it  was  held,  that  possession  is  a  sufficient  title.  So  in  The  People  v.  Van  Blarcum, 
2  Johns.  jR.  105.  ' 

In  X.hG  English  \^\v  this  question,  as  to  whose  a  dwelling-house  is  in  respect  to  arson, 
which,  as  Mr.  East  remarks,  (2  East,  P.  C.  1034,)  had  been  one  of  great  nicety  ip 
English  jurisprudence,  is  excluded  by  the  statute  of  7  &  8  Geo.  IV.  c.  30,  s.  1,  by  which 
it  is  enacted,  that  "  if  any  person  shall  unlawfully  and  maliciously  set  fire  to  any  house, 
whether  the  same  shall  then  be  in  possession  of  the  offender,  or  in  possession  of  any 
other  person,  with  the  intent  to  injure  or  defraud  any  person,  shall  suffer  death."  This 
provision  makes  the  crime  the  same,  wiicther  it  be  committed  by  day  or  night,  and 
whether  it  be  the  dwelling-house  of  the  offender  or  of  another.  The  burning  of  other 
buildings  is  put  upon  the  same  footing  in  the  same  section.  Mass.  Corn.  Rep.  Tit, 
^^Arson  and  Malicious  Burning.''^ 

[3]  At  common  law,  the  offence  could  not  be  committed  by  a  party  in  burning  his 
own  house;  and  a  person  seized  in  fee,  or  but  possessed  for  years  of  a  house  standing  by 


HISTORIA  PLACITORUM  CORONA.  568 

A  tenant  for  years  of  a  house  sets  fire  to  his  own  house,  thereby 
intending  maliciously  to  fire  the  house  of  B.  if  he  burn  his  own  house, 
and  also  thereby  burn  the  house  of  B.  this  is  felony;  but  if  he  burn 
not  the  house  oi  B.  according  to  his  design,  but  only  burn  his  own. 
house,  this  is  not  felony,  but  a  great  misdemeanor,  for  which  he  was 
set  in  the  pillory,  fined,  and  perpetually  bound  to  the  good  beha- 
viour, and  yet  it  was  of  a  house  in  the  city  of  London,  and  laid  that 
he  did  it  eci  intentione  to  burn  th?  houses  of  others.  M.  10  Car.  1. 
B.  R.  Croke  377.  Holme's  case,  adjudged. 

III.  It  must  be  a  burning  of  a  house  of  another, [4]  therefore  if./?, 
sets  fire  to  the  house  of  B.  maliciously  to  burn  it,  but  either  by  some 


itself,  at  a  distance  from  all  otiiers,  could  not  commit  felony  in  burning  the  same.  So  a 
man  so  seized  or  possessed  of  a  house  in  a  town,  who  burned  his  own  with  intent  to 
burn  his  neighbour's,  but  in  the  event  burned  his  own  only,  was  not  guilty  of  felony  :  it 
was,  however,  certainly  an  offence  highly  punishable  in  regard  to  the  malice  thereof^ 
and  the  great  danger  to  the  public  which  attended  it,  and  the  offender  was  liable  to  be 
severely  fined  and  imprisoned  during  the  Queen's  pleasure,  and  set  on  the  pillory,  and 
bound  to  his  good  behaviour.  1  Hawk.  c.  29,  s.  3;  Breeme's  case,  1  Leach,  220,  Ath  ed.; 
Holme's  case,  Cro.  Car,  376.  cited  in  the  text  supra. 

The  frequent  commission  of  the  latter  offence,  and  the  very  serious  mischief  that  re- 
sulted from  its  being  merely  a  misdemeanor,  at  last  attracted  the  attention  of  the  legis- 
lature; and  the  party  who  would  occasion  by  burning  his  own  possessions  an  injury  to 
another,  the  extent  of  which  in  many  cases  cannot  be  calculated,  is  now  guilty  of  a  felo- 
ny :  formerly,  by  43  Geo.  III.  c.  58,  usually  called  Lord  Ellenborough's  Act,  and  now 
by  7  Will.  IV.  &  1  Vict.  c.  89,  s.  3. 

The  burning  must  be  done  unlawfully  and  maliciously  to  constitute  the  offence  ;  for 
if  it  be  done  by  mischance  or  negligence,  it  is  no  felony.  (3  Inst.  67.)  As  if  an  unquali- 
fied person,  in  sporting,  happen  to  set  fire  to  the  thatch  of  a  lioiise;  or  even  if  a  man 
were  shooting  at  tlie  poultry  of  another,  by  which  means  the  house  is  fired,  that  is,  pro- 
vided he  did  not  mean  to  steal  the  poultry,  but  merely  to  commit  a  trespass,  for  other- 
wise the  first  intent  being  felonious,  the  party  must  abide  all  the  consequences.  2  EasVs 
P.  C.  1019. 

[4]  If  a  man,  by  wilfully  setting  fire  to  his  own  house,  burn  also  the  house  of  one  of 
his  neighbours,  it  will  be  felony.  Rex  v.  Robert,  2  EasVs  P.  C.  1031.  Rex  v.  Isaac,  Id. 
The  law  in  such  case  implies  malice,  particularly  if  the  party's  house  were  so  situate 
that  the  probable  consequence  of  its  taking  fire  was  tliat  the  fire  would  communicate  to 
the  houses  in  its  neighbourhood.  Per  Parke,  J,  in  Sweetapple  v.  Jesse,  5  B.  Sf  Ad.  31. 
2  Nev.  Sf  Man.  41.  S.  C.   Bait's  case,  3  City  Hall  Rec.  85.;  sed  vide  Bliss  v.  Tobey, 

2  R.  SfR.  325.    Curtis  v.  Godley  Hundred,  3  B.  Sf  Cr.  248. 

Neither  a  bare  intention  to  burn  a  house,  nor  even  an  actual  attempt  to  do  it  by  put- 
ting fire  to  part  of  a  house,  will  constitute  the  offence,  if  no  part  of  it  be  burned;  but  if 
any  part  of  the  house,  &c.  be  burned,  the  offence  will  be  complete,  notwithstanding  the 
fire  be  afterwards  put  out,  or  go  out  of  itself.    2  East's  P.  C.  1020.    The  State  v.  Sandy, 

3  Iredell,  R.  570. 

Where  it  was  proved  that  the  floor  near  the  hearth  was  scorched,  and  it  was  in  fact 
charred  in  a  trifling  way,  that  it  had  been  at  a  red  heat,  though  not  in  a  blaze,  it  was 
held  that  the  offence  was  complete.     Reg.  v.  Parker,  9  Car.  Sf  P.  45. 

But  in  another  case,  where  it  appeared  that  a  small  fagot  was  set  on  fire  on  the 
boarded  floor  of  a  room,  and  that  the  fagot  was  nearly  consumed,  that  the  boards  of  the 
floor  were  scorched  black,  but  not  burnt,  and  that  no  part  of  the  floor  was  consumed,  it 
was  held  that  the  offence  was  not  complete.  Rex  v.  Russ.,  1  C.  Sf  Marsh,  SiL  Rex  v. 
Taylor,  1  Leach,  C.  C.  49.    Rex  v.  Judd,  2  T.  R.  255. 

The  cases  lay  down  the  doctrine  generally  that  it  is  sufficient  if  the  house  be  on  fire. 
3  Inst.  66.  4  Bl.  Com.  222,  Chitiy's  note.  2  EasVs  P.  C.  21.  s.  4.  Rex  v.  Taylor,  cited 
supra.    The  People  v.  Cotteral,  18  Johns,  R.  115.     But  in  all  the  cases  where  this  gene- 

VOL.  I. — 50 


5^8  HISTORIA  PLACITORUM  CORON.E. 

accident  or  timely  prevention  the  fire  takes  not,  this  is  no  felony,  tho 
it  were  a  malicious  attempt,  for  the  words  are  incendit  and  combus- 
sit,  but  if  he  had  burned  part  of  the  house,  and  the  fire  is  quenched, 


ral  doctrine  was  laid  down,  there  was  an  evident  intent  to  burn  down  the  house.  Sed 
quare,  whether  tliis  be  not  too  broadly  stated  in  point  of  principle. 

The  attempt  to  commit  arson  is  a  misdemeanor  at  common  law,  and  as  such  may  be 
punished  severely.    Rex  v.  Jngleton,  1  Wils.  R.  139.    Burns^  Just.  vol.  1.  tit.  ^^  Aiteinpts." 

The  burning  must  be  with  intent  to  injure  some  person  who  is  not  identified  with  the 
defendant.  Rex  V.March,  R.  Sf  M.  182.  Rex  v.  Farrington,  R.  i^-  R.  207.  Rex  v.  Gibson, 
Id.  138.   Jervis's  Arch.  Cr.  Law,  9  ed.  320. 

As  to  the  forin  of  the  Indictment. — In  describing  the  building,  it  is  sufficient  to  use  the 
langjuage  used  by  the  act  calling  it  a  house,  &.c.  according  to  the  fact.  2-  EasVs  P.  C' 
lOS'S.  Rex  v.  North,  Id.  Rex  v.  Donnevan,  2  Wm.  Bl.  682.  2  EasVs  P.  C.  1020. 
1  Uach,  C.  C.  69.  S.  C.  Rex  v.  Winter,  R.  Sf  R.  298. 

The  name  of  the  owner  of  the  house  must  be  stated  in  the  same  manner  as  in  burglary. 
Rex  v.  Standjield,  2  East's  P.  C.  1034.  The  Com.  v.  Wade,  17  Pick.  R.  395.  The  State 
V.  Roe,  12  Venn.  R.  93.  It  is  necessary,  therefore,  to  determine  the  party  to  whom  the 
premises  belong.  When  any  doubt  is  entertained  on  the  subject,  the  difficulty  may  be 
obviated  by  the  insertion  of  several  counts  to  correspond  with  the  evidence.  3  Chit. 
Cr.  L.  1126. 

If  the  premises  be  described  as  in  the  possession  of  A.  B.  proof  that  they  are  in  the 
possession  of  the  tenants  of  A.  B.  will  support  the  indictment.  Rex  v.  Ball,  R.  Sf  M. 
C.  C.  30.    The  People  v.  VarMarcum,  2  Johns.  R.  105, 

So  if  the  possession  of  a  house  be  obtained  wrongfully,  it  may  be  described  as  the 
house  of  the  wrongful  occupier.  Rex  v.  Wallis,  Mood.  C.  C.  334.  The  People  v.  Gates, 
15  Wend.  R.  159. 

The  parish  in  which  the  building  is  situated  must  be  stated  according  to  the  fact;  a 
variance  will  be  fatal.    Rex  v.  Woodward,  Mood.  C.  C.  323. 

A  variance  between  the  day  stated  in  the  indictment,  as  that  on  which  the  offi^nce 
was  committed,  and  the  day  proved  will  be  immaterial.  Where  the  indictment  alleges 
the  offence  to  have  been  committed  in  the  night-time,  and  it  was  proved  to  have  been 
committed  in  the  day-time,  the  judges  held  the  variance  to  be  immaterial..  Rex  v.  Min. 
ton,  2  East,  P.  C  1021. 

It  is  necessary  to  aver  that  the  defendant "  feloniously,  unlawfully,  and  maliciously," 
set  fire,  &c.  2  EasVs  P.  C..1021.  Rex  v.  Turner,  R.  Sf  M.  C.  C.  239.  Chapman  v. 
Co7n.  5  Whart.  R.  427. 

It  was  not  necessary  to  aver  in  an  indictment  on  the  statute  9  Geo.  I.  c.  22.  for  setting 
fire  to  a  hay-stack,  that  the  stack  "  was  thereby  burnt."  Rea:  v.  Salmon,  R.  Sf  R.  C.  C. 
26.   2  Rvss.  Cr.  c^-  M.  294.  S.  C. 

In  an  indictment  on  the  same  statute  for  the  same  offence,  it  is  no  answer  to  the  charge, 
that  the  prisoner  had  no  malice  in  spite  to  the  owner  of  the  stack;  nor  that  the  stack 
stood  upon  his  ground,  if  it  was  not  his  property.  Id. 

An  indictment  for  setting  fire  to  a  barge,  the  property  of  another,  ought  to  contain 
an  averment  that  it  was  done  with  an  intent  to  injure  the  owner.  Rex  v.  Smith, 
4Car.Sf  P.  569.  •        -  . 

An  indictment  on  the  statute  oflSfS  Geo.lV.c.  30.  §§2. 17.  for  setting  fire  to  a  barn 
and  a  stack  of  straw,  charged  the  offences  to  have  been  committed  "  feloniously,  volun- 
tarily, ar\i\  maliciously,"  instead  of  feloniously,  wnZaw/wZZf/,  and  maliciously,  held  bad. 
The  prisoners  had  set  fire  to  a  stack  of  stubble,  (which  in  Camhridgeshire  is  called 
•  haulm;)  they  were  indicted  on  a  first  indictment  for  setting  fire  to  a  "stack  of  straw:" 
i/e/</,  that  this  was  not  straw.  And  on  their  being  again  indicted. for  setting  fire  to 
"  a  stack  of  straw  called  hauhn,"  the  judge  intimated  that  to  convict  them  upon  such  a 
count  would  not  be  safe:  and  the  verdict  in  consequence  was  taken  upon  other  counts 
charging  the  setting  fire  to  a  barn  and  a  wheat  stack.  Rex  v.  Reader,  4  Car.  Sf  P.  245. 
Ry.  4-  M.  C.  C.  239.  S.  C. 

An  indictment  on  the  same  stat.  §  17.  charged  a  party  with  setting  fire  to  a  "stack  of 
barley  of  the  value  of  Jfl  00  of  R.  P.  W.:"  Held  good,  although  the  words  of  the  statute 
creating  the  offence  use  "  any  stack  of  corn  or  grain :"  Held  also,  that  the  words 
"  R.  P.  W."  sufficiently  stated  the  property.    Rex  v.  Swatkins,  4  Car.  Sf  P.  548.    . 


HISTORIA  PLACITORUM  CORONA.  569 

or  goes  out  before  the  whole  house  be  burned,  it  is  felony.  Co.  P.  C. 
p.  66.  Dalt.  cap.  105.(/)[5] 

It  must  be  a  wilful  and  maliciotis  burning,  otherwise  it  is  not 
felony,  but  only  a  trespass. 

And  therefore  \(  ,j1.  shoot  unlawfully  in  a  hand-gun,  suppose  it  be 
at  the  cattle  or  poultry  of  ^.  and  the  fire  thereof  sets  another's  house 
on  fire,  this  is  not  felony,  for  tho  the  act  he  was  doing  were  unlaw- 
ful, yet  he  had  no  intention  to  burn  the  house  thereby,  against  the 
opinion  oi  Dalt.  cap.  105.  p.  270. (m) 

But  if  ^.  have  a  malicious  intent  to  burn  the  house  of  B.  and  in 
setting  fire  to  it  burns  the  house  of  B.  and  C.  or  the  house  of  B.  es- 
capes by  some  accident,  and  the  fire  takes  in  the  house  of  C.  and 
burneth  it,  tho  ^.  did  not  intend  to  burn  the  house  of  C.  yet  in  law 
it  shall  be  said  the  malicious  and  wilful  burning  of  the  house  of  C. 
and  he  may  be  indicted  for  the  malicious  and  wilful  burning  of  the 
house  of  C.    Co.  P.  C.  p.  67.(n) 

An  infant  of  about  fourteen  years  of  age  or  under  may  be  guilty 
of  malicious  burning  of  houses,  if  by  circumstances  it  can  appear  he 
knew  it  to  be  evil. [6] 

Before  me  at  Norfolk,  a  boy  about  the  age  of  fourteen  years  was 
arraigned  upon  two  several  indictments  for  malicious  and  wilful 
burning  of  two  several  houses,  t^e  first  was  his  own  father's,  and  it 
appeared,  that  when  he  had  secretly  carried  fire  into  the  barn  and 
fired  it,  he  falsly  charged  another  with  the  fact,  and  upon  the  boy's 
accusation  he  was  imprisoned,  till  it  appeared  clearly  he  was  not  the 
offender:  this  boy  was  afterwards  together  with  his  father  and  his 
other  children  entertained  at  a  neighbour's  house  in  charity,  and 
the  boy  watching  opportunity,  when  none  were  in  the  house  but  a 
child  in  the  cradle,  carried  fire  out  of  the  kitchen  into  a  room  of  fur- 
zes, and  set  fire  in  it  and  went  out,  and  thus  burnt  a  second  house, 
and  the  child  in  the  cradle;  for  both  these  he  was  questioned,  and  at 
length  confessed  freely  the  whole  circumstances  of  both  facts; 
he  was  indicted,  and  upon  his  arraignment  pleaded,  and  upon  [  570  ]] 
his  trial  craftily  insisted,  that  he  was  under  fourteen  years 
of  age;  but  I  directed  the  jury,  that  it  appeared  by  the  circumstan- 
ces, that  his  malice  supphed  his  age,  for  it  appeared,  that  he  under- 
stood the  evil  of  the  first  offense  when  he  did  it  so  secretly,  and  yet 
charged  another  wrongfully  j  but  if  there  had  been  any  doubt  of  the 
first  burning,  yet  he  could  not  but  be  conusant  that  the  second  burn- 
ing was  a  great  crime,  when  he  saw  another  formerly  charged  by 
him  with  the  first  burning  committed  as  for  felony;  but  yet  for  my 
farther  satisfaction,  and  in  respect  the  boy  seemed  very  little,  I  took 
farther  examination  touching  his  age,  and  his  father,  being  by,  freely 

{I)  New  Edit.  p.  506.  (?n)  Pnd. 

(n)  See  the  case  of  Coke  and  Woodburne,  State  Tr.  Vol.  VI.  p.  222. 

[5]  See  ante  note  No.  [2].  [6]  See  ante  p.  26,  note  [2]. 


570  HISTORIA  PLACITORUM  CORONA. 

confessed  and  was  content  to  swear,  that  he  was  above  fourteen  and 
near  fifteen  years  of  age,  and  he  was  convicted  and  executed. 

IV.  What  felony  this  is. 

And  it  seems  unquestionable,  that  the  burning  of  a  dwelling-house,. 
or  any  part  thereof,  or  any  out-house  part  thereof,  was  a  felony  at 
common  law,  and  so  was  also  the  burning  of  a  barn  with  hay  or  corn 
in  it,  tho  not  parcel  of  a  dwelling-house,  but  standing  at  a  distance. 
Co.  P.  C. p.  67.    11  H.7.1.b.[l] 

V.  But  as  to  the  point  of  the  not  allowance  of  clergy  therein,  th6re 
may  be  some  matters  to  be  examined  :  certain  it  is,  that  at  this  day 
clergy  is  not  allowable  to  a  party  convicted  of  wilful  and  malicious 
burning  of  a  dwelling-house,  or  of  a  barn  with  corn ;  quod  vide  11 
Co.  Rep.  34.  Coulter'' s  case  adjudged  per  omnes  Justic.  Plow. 
Com.  475.  Co.  P.  C.  p.  67.  and  the  constant  practice  hath  been  to 
deny  clergy  to  those  convict  of  this  crime;  quod  vide  in  the  reso- 
lution of  Poulter^s  case. 

And  the  statute  of  4  <5-  5  P.  4'  M.  cap.  4.  takes  away  clergy  from 
all  accessaries  before  to  the  offenses  of  wilful  burning  any  dwelling- 
house,  or  of  any  barn  then  having  corn  or  grain  in  the  same;- and 
surely  they  took  the  law  to  be,  that  the  principal  was  by  law  ousted 
of  his  clergy,  or  otherwise  they  would  not  have  ousted  the  accessary 
of  his  clergy.  • 

But  then  the  question  remains,  what  it  was  that  ousted  the  prin- 
cipal of  his  clergy. 

By  the  statute  of  23  H.  8.  cap.  1.  clergy  was  ousted  from 
[571]  all  persons  found  guilty  of  wilful  burning  of  any  dwelling- 
houses  or  barn,  wherein  auy  grain  or  corn  should  happen  to 
be,  and  from  all  persons  found  guilty  of  abetting,  aiding  or  coun- 
selling thereof,  viz.  accessaries  before;  except  persons  in  order  of 
subdeacon,  or  above. 

The  statute  of  1  ^.  6.  cap.  12.  as  to  divers  offenses  therein  par- 
ticularly mentiond,  which  are  for  the  most  part  also  included  in  the 
statute  of  23  H.  8.  carried  the  exclusion  of  clergy  farther,  viz.  as  to 
standing  mute,  or  not  directly  answering,  but  mentions  not  at  all 
wilful  burning  of  houses,  or  barns  with  grain;  and  enacted,  that  in 
all  other  cases  of  felony  persons  indicted  shall  have  their  clergy,  as 
they  should  have  had  before  1  H.  8. 

So  that  by  the  act  of  1  E.  6.  clergy  was  restored  to  burning  of 
houses  and  barns  with  corn,  notwithstanding  the  statute  of  23  H.  8. 
or  any  other  statute  made  since  the  first  year  of  Henry  VIII.  and  if 
the  ousting  of  the  principal  in  arson  from  his  clergy  rested  upon  the 
statute  of  23  H.  S.  then  the  statute  of  1  E.  6.  had  restored  him  to  his 
•  clergy. 

The  solution  therefore  of  this  matter  is  upon  two  accounts. 

[7]  See  Slate  v.  Stewart,  6  Conn.  R.  47;  Sampson  v.  Com.  5  W.  Sf  S.  Rep.  385; 
Com.  V.  Vanshriack,  16  Mass.  R.  105;  Com.  v.  Macomber,  3  Id.  254;  Com.  v.  Squire,' 
1  Metcf.  R.  258;  Com.  v.  Wade,  17  I'ick  R.S'JS. 


HISTORIA  PLACITORUM  CORONiE.  571 

1.  Some  have  thought  that  the  wilful  burning  of  houses  was  not 
within  clergy  by  the  conrimon  law,  nor  by  the  statute  of  25  E.  3. 
cap.  4.  because  it  was  an  hostile  act,(o)  and  therefore,  as  until  the 
statute  of  4  H.  4.  cap.  2.  Insidiatores  viarum  <§•  depopulatores 
agrorum  joined  with  another  felony,  and  so  found,  were  ousted  of 
their  clergy,  because  savouring  of  acts  of  hostility,  so  incendiatores 
doni one 771  were  even  by  the  common  law  ousted  of  clergy  before  the 
statute  of  23  H.  8.  and  so  are  not  restored  to  clergy  by  the  general 
clause  of  the  statute  of  1  E.  6.  and  this  I  remember  was  delivered  as 
the  reason  of  the  exclusion  of  clergy  from  wilful  burning  by  ]Mr.  At- 
torney Not/,  S  Car.  1.  in  the  king's  bench,  and  seemed  to  be  assented 
to  by  the  court. 

But  I  think  this  will  hardly  help  the  matter,  1.  Because  tho 
possibly  clergy  might  not  be  allowd  at  common  law  to 
MMJful  burning,  yet  the  statute  of  25  E.  3.  cap.  4.  p7'o  [  572  ]] 
ckro  extends  clergy  to  all  treasons  and  felonies  touching 
other  persons  than  the  king  himself,  and  his  royal  majesty.  2. 
Because  then  as  well  a  burning  of  a  barn  with  hay,  as  a  barn 
with  corn,  would  be  excluded  from  clergy,  for  the  one  is"as  hostile 
as  the  other. 

2.  Others  have  thought  that  the  statute  of  4  4-  5  P.  4'  M.  cap.  4. 
taking  away  clergy  from  the  accessaries  before,  doth  take  away  by 
necessary  consequence  the  clergy  from  the  principal,  for  it  were  not 
reason  to  think  the  accessary  before,  should  be  in  a  worse  condition, 
than  the  principal  offender,  and  therefore  virtually  and  implicatively, 
and  by  necessary  consequence  it  takes  away  clergy  from  the  princi- 
pal in  all  those  cases,  where  it  takes  it  from  the  accessary  before; 
and  besides,  if  the  principal  had  his  clergy,  the  accessary  could 
not  be  arraigned,  and  this  I  think  is  true,  tho  this  case  needs  not  this 
help. 

But  I  think,  and  so  is  the  book  of  1 1  Co.  Rep.  34,  35.  that  the  statute 
of  25  H.  S.  cap.  3.  which  extends  to  take  away  clergy  in  all  those  cases 
which  were  within  23  H.  8.  cap.  1.  and  particularly  recites  that  of 
burning  houses  and  barns  with  grain,  and  farther  extends  that  exclu- 
sion to  standing  mute,  not  directly  answering,  challenging  above 
twenty,  I  say  that  statute  of  25  H.  8.  was  in  great  part  repealed  by 
the  statute  of  1  E.  6.  and  is  entirely  revived  by  the  statute  of  5  <5'  6 
E.  6.  cap.  10.  not  only  as  to  the  point  of  ousting  clergy  upon  exami- 
nation,(/?)  but  also  as  to  the  exclusion  of  clergy  in  those  cases  men- 
tioned in  the  act  of  25  H.  8.  wherein  burning  of  houses  and  barns 
with  corn  is  expresly  mentioned,  so  that  consequently  this  statute  of 

(o)  And  so  interpretatively  a  felony  touching  the  person  of  the  king  himself,  which  by 
that  statute  vvas  ousted  of  clergy. 

(/))  This  relates  to  the  second  clause  of  the  25  H.  8.  cap.  3.  whereby  it  is  provided  that 
if  aoy  persons  be  indicted  in  one  county  for  stealing-  goods  in  another,  and  stand  mute, 
or  challenge  peremptorily  above  twenty,  or  will  not  directly  answer,  they  shall  be  put 
from  their  clergy  in  like  manner,  as  if  they  had  been  tried  and  found  guilty  in  the  same 
county,  where  the  offense  was  committed,  if  it  appear  to  the  justices  by  the  evidence  or 
on  examination,  that  it  was  such  a  felony,  as  if  found  guilty  thereof  in  the  county  where 
conimitted,  they  would  have  lost  their  clergy  by  the  23  H.  8.  cap.  1. 


572  HISTORIA  PLACITORUM  CORON.E. 

5  Sr  6  E.  6.  reviving  the  statute  of  25  H.  8.  repeals  the  generahty  of 
that  clause  in  1  E.  6.  whereby  clergy  was  let  in,  in  all  cases  there 

not  enumerated. 
[  573  ]]      And  consequently  the  periods  of  this  case  of  clergy  in 

wilful  burning  stand  thus. 

1.  Before  23  H.  8.  clergy  was  allowable  therein  by  force  of  the 
statute  of  25  E.  3.  pro  clero. 

2.  After  23  H.  8.  until  25  H.  8.  clergy  was  allowable  for  the  ac- 
cessary in  all  cases,  and  for  the  principal  in  all  cases,  but  finding  hitn 
guilty. 

3.  After  25  H.  8.  until  1  E.  6.  clergy  was  taken  away  from  the 
principal  as  well  where  he  stands  mute,  not  directly  answers  or  chal- 
lenges above  twenty,  as  where  he  is  found  guilty. 

But  the  accessaries  as  well  before  as  after  were  to  have  clergy. 

4.  After  1  E.  6.  till  5  S>^  6  E.  6.  when  the  statute  of  25  H.  8.  was 
revived,  both  principal  and  accessaries  had  their  clergy  in  all  cases 
of  burning. 

5.  After  5  8,^  6  E.  6.  till  4  (§-  5  P.  (S*  M.  cap.  4.  the  principal  was 
excluded  in  all  cases,  wherein  he  was  excluded  by  the  statute  of  25 
H.  8.  as  well  where  he  stood  mute,  challenged  above  twenty,  did 
not  directly  answer,  as  where  found  guilty. (§-) 

But  the  accessaries  before,  as  well  as  after,  had  their  clergy. 

6.  By  the  statute  of  4  4'  5  F.  S)'  M.  cap.  4.  until  this  day,  accessa- 
ries before  are  excluded  of  clergy  in  all  cases,  but  accessaries  after 
have  their  clergy. 

But  yet  there  still  remain  two  doubts. 

1.  Whereas  the  statute  of  4  <§•  5  P.  c^-  M.  cap.  4.  extends  to  oust 
clergy  from  the  accessary,  as  well  if  he  be  attainted  as  convicted,  and 
consequently  if  outlawed,  he  shall  not  have  clergy,  because  it  is  an 
attainder;  the  statute  of  25  H.  8.  extends  only  to  finding  guilty, 
challenging  above  twenty,  standing  mute,  or  not  directly  answering, 
and  it  seems  in  attainder  of  the  principal  by  outlawry  he  shall  have 
his  clergy;  therefore  quasre,  whether  an  attainder  by  outlawry  ousts 
the  principal  of  clergy  upon  the  statute  of  23  or  25  H.  8. 

2.  Whereas  the  statute  of  4  <§•  5  P.  <§•  M.  cap.  4.  hath  no 
[  574  3  exception  of  persons  in  the  order  of  sub-deacon;  but  acces- 
saries before  are  ousted  of  their  clergy  in  all  cases  by  that 
statute,  tho  in  orders. 

Yet  by  the  statute  of  25  H.  8.  which  is  relative  to  the  statute  of 
23  H.  8.  principals  in  the  order  of  sub-deacon,  or  above,  have  their 
clergy  in  the  case  of  arson,  for  by  the  statute  of  23  H.  8.  clergy  is 
saved  to  men  in  orders,  where  found  guilty;  and  by  the  statute  of 
25  H.  8.  in  cases  of  standing  mute,  <§'c.  they  are  ousted  of  their  clergy 
as  if  found  guilty,  in  which  case  men  in  orders  had  their  clergy,  and 
so  the  revivmg  of  the  statute  of  25  H.  8.  by  that  of  5  <5'  6  E.  6.  lets 
in  men  in  orders  to  their  clergy  in  case  of  arson,  wliich  seems  to 
make  this  absurdity,  that  the  principal  in  arson  shall  have  the  beiie- 

{q)  By  3  &.  4  W.  Sf  M.  clergy  is  taken  away  in  case  of  outlawry  also. 


HISTORIA  PLACITORUM  CORON.^.  574 

fit  of  dergy  if  in  orders,  but  the  accessaries  before,  tho  in  orders, 
are  excluded  by  the  general  penning  of  the  act  of  4  4'  5  P.  <§•  M. 

And  herein  tfiere  will  arise  a  difference  as  to  men  in  orders,  in  re- 
lation to  the  benefit  of  clergy,  between  the  case  of  being  principal  in 
wilful  burning  of  houses,  and  the  case  of  being  principal  in  robbery 
in  or  near  the  highway,  or  robbing  in  a  dwelling-house,  putting  the 
dweller  in  fear,  or  murder  of  malice  prepense  ;  for  the  act  of  1  E.  6. 
cap.  12.  excludeth  them  from  their  clergy  generally  without  exception 
of  men  in  orders,  tlio  they  were  excepted  by  the  statutes  of  23  and 
25  U.S. 

But  this  statute  of  1  E.  6.  making  no  mention  of  burning  of  houses, 
the  exclusion  of  them  from  clergy,  if  resting  upon  tiie  statute  of  25 
H.  8.  revived  by  5  4-  6  E.  6.  excepts  them. [8] 

[8]  The  State  v.  Seaborn,  4  Dtp.  R.  305  ;  Com.  v.  Posey,  4  CaWs  Rep.  109.    See  ante 
chap,  44,  p.  517,  note  [1.] 


CHAPTER  L.  [  575  ] 

CONCERNING  FELONIES  BY  THE  COMMON  LAW,[1]  RELATING  TO  THE 
BRINGING  OF  FELONS,  TO  -JUSTICE,  AND  THE  IMPEDIMENTS  THERE- 
OF, AS  ESCAPE,  BREACH  OF  PRISON,  AND  RESCUE;  AND  FIRST 
TOUCHING-  ARRESTS. [2] 

I  COME  now,  according  to  the  method  propounded,  to  consider  those 
felonies  that  relate  to  the  public  justice  of  the  kingdom  in  bringing 
malefactors  to  their  due  punishment,  and  the  impediments  thereof, 
and  they  are  principally  three,  viz.     1.  By  the  party  arresting  or 


[2]  As  to  Arrests,  see  vol.  2,  ch.  10,  11,  12,  13,  and  notes  thereto. 

[1]  "Felonies  in  England,  comprised  originally  every  species  of  crime  which  occa- 
sioned the  forfeiture  of  lands  and  goods.  At  common  law,  in  addition  to  the  crimes 
more  strictly  coming  under  the  head  of  treason,  the  chief,  if  not  the  only  felonies,  were 
murder,  manslaughter,  arson,  burglary,  robbery,  rape,  sodomy,  mayhem,  and  larceny. 
By  statutes,  however,  running  from  the  earliest  period,  new  felonies  were,  from  time  to 
time,  created;  till  finally  not  only  almost  every  heinous  offence  against  person  or  pro- 
perty was  included  within  the  class,  but  it  was  held  that  whenever  judgment  of  life  or 
member  was  affixed  by  statute,  the  offence  to  which  it  was  attached,  became  felonious  by 
implication,  though  the  word  felony  was  not  used  in  the  statute."  In  this  country,  with 
a  few  exceptions,  the  common  law  classification  has  obtained;  the  principal  felonies 
being  received  as  they  originally  existed,  and  their  number  being  increased  as  the  exi- 
gencies of  society  prompted.  In  New  York,  however,  felony  by  the  revised  statutes  is 
construed  to  mean  an  offence  for  which  the  offender,  on  conviction,  shall  be  liable  by  law 
to  be  punished  by  death,  or  by  imprisonment  in  a  State  prison.  {Rew  Stat.  N.  Y.  Part 
IV.  Chap.  II.  Title  7.  s.  30.)  And  in  Virginia  it  comprehends  all  offences  below  trea- 
son which  occasioned  a  forfeiture  of  property  at  common  law,  all  -so  denominated  by 
statutes,  and  all  to  which  statutes  have  annexed  capital  punishment  or  confinement  in 
the  penitentiary,  excepting  thpse  which,  though  subjected  to.  the  latter  punishment,  are 


575  HISTORIA  PLACITORUM  CORONA. 

imprisoning,  as  voluntary  escapes.  2.  By  the  party  arrested,  and 
imprisoned,  as  breach  of  prison.  3.  By  a  stranger,  as  rescue  of 
felons. 

And  in  this  order  I  shall  examine  these  offenses ;  but  as  a  neces- 


or  may  be  declared  misdemeanors  by  the  statutes  Grating  them."    Barker  v.  Com.  2  Vir- 
ginia Cases,  122;   Whart.  Am.  Crim.  L.  1,  2. 

J'elony  is  supposed  to  come  from  tlie  Saxon  fel,  which  signifieth  fierce  or  cruel ;  of 
which  the  verb  fell  signifieth  to  throw  down  or  demolish,  and  the  substantive  of  that  name 
is  used  to  signify  a  mountain  rough  and  uncultivated.  But  the  same  word,  with  a  little 
variation,  runneth  througli  most  of  the  European  languages,  and  signifieth  more  gene- 
rally, an  offence  at  large;  and  the  Saxon  word  faellan,  signifieth  to  offend,  diTid  fellnisae, 
an  offence  or  failure ;  and  altliough  felony,  as  it  is  now  become  a  technical  term,  signi- 
fieth  in  a  more  restrained  sense  an  offence  of  a  higii  nature,  yet  it  is  not  limited  to  capi. 
tal  offences  only,  but  still  retaineth  somewhat  of  this  larger  acceptation;  for  petit  larceny 
is  felony,  although  it  is  not  capital     Burn's  Just.  Tit.  "Felony,"  29iA  Ed. 

According  to  Sir  Henry  Spelman's  observation,  it  signifieth  such  an  offence  for  which, 
during  the  feudal  institution,  a  man  should  lose  or  forfeit  his  estate;  which  he  derives 
of  two  northern  words,  fee,  which  signifieth  the  fief,  feud,  beneficiary,  estate;  and  Ion, 
which  signifies  price  or  value. 

Upon  the  whole,  the  only  adequate  definition  of  felony  seems  to  be  this,  viz.  "  an 
offence  which  occasions  a  total  forfeiture  of  either  lands  or  goods,  or  both,  at  the  common 
law,  and  to  which  capital  or  other  punishment  may  be  superadded  according  to  the  de- 
gree of  guilt.    4  Bl.  Com.  94,  95. 

The  idea  of  felony  is,  however,  so  generally  connected  with  that  of  capital  punishment, 
that  it  seems  hard  to  separate  them,  and  to  this  usage  the  interpretations  of  law  now  con- 
form. For  if  a  statute  makes  any  new  offence /e/ony,  the  law  implies  it  shall  be  punished 
With  death,  (viz.  by  hanging,)  as  well  as  by  forfeiture.  See  1  Hawk.  c.  41.  s.  4;  2  Id. 
c.  48. 

Where  the  statute  declares  that  the  offender  shall,  under  the  particular  circumstances, 
be  deemed  to  have  feloniously  committed  any  act,  it  makes  the  offence  a  felony,  and  im  > 
poses  all  the  common  and  ordinary  consequences  attending  a  felony.  Rex  v.  Johnson, 
3  M.  Sf  Sel.  556.  And  though  a  statute  make  the  doing  of  an  act  felonious,  yet,  if  a 
subsequent  act  make  it  penal  o.nly,  the  latter  is  considered  as  a  virtual  repeal  of  the  for- 
mer.   1  Hawk.  c.  40.  s.  5. 

All  felonies  are  several,  and  cannot  be  joint,  so  that  a  pardon  of  one  felon  cannot  dis- 
charge  another;  but  the  felony  of  one  man  may  be  dependent  upon  that  of  another,  and 
the  pardon  of  the  one,  by  a  necessary  consequence,  enure  to  the  benefit  of  the  other,  as 
in  cases  of  principal  and  accessary,  &.c. 

The  Massachusetts  Commissioners,  in  their  Report,  enumerate  as  felonies  within  the 
provisions  of  their  code,  treason,  murder,  arson,  rape,  malicious  burning,  carnal  abuse  of 
a  female  child  under  ten  years  of  age,  burglary,  robbery,  larceny,  kidnapping,  child- 
stealing,  and  the  offence  of  assault,  or  assault  and  battery  in  the  first  degree.  And  in  a 
note  they  add  that  the  meaning  oi" felony  as  by  them  defined,  is  limited  to  the  use  of  the 
word  in  their  code,  and  is  not  to  be  confounded  with  the  common  law  signification  of 
the  same  term,  ''whatever  tiiat  meaning  may  be,  for  it  is  a  matter  of  no  little  difficulty 
to  settle  it."    Rep.  tit.  "  Explanation  of  Terms." 

Wliere  one  is  found  guilty  of  acts  which  amount  to  a  felony,  though  not  charged  to 
be  done  feloniously,  he  cannot  be  sentenced  as  for  a  misdemeanor.  Commonwealth  v. 
Ivingshury,  5  Mass.  106.  Commonwealth  v.  Rohy,  12  Pick.  496.  Commonwealth  v. 
Macomber,  3  Mass.  254. 

If  acts  amounting  only  to  a  misdemeanor  are  charged  to  be  done  feloniously,  the 
accused  cannot  be  convicted  of  the  misdemeanor.  Commonwealth  y.  Newell,  7  Mass. 
245.  But  see  Com.  v.  Sijuire,  1  Met.  258.  The  People  v.  Jackson,  'S  HiWs  IS.  Y.  Rep, 
92.     The  People  v.  White,  22  \Yend.  175. 

Statutes  are  to  be  construed  so  as  not  to  multiplj'  felonies,  unless  such  construction  is 
supported  by  express  words  or  necessary  implication.  Commonwealth  v.  Mucomher, 
3  Mass.  254.  257,  Commonwealth  v.  Barlou^,  4  Mass.  R.  439.  It  would  be  such  an  im- 
plication if  the  statute  provided  for  tlie  punishment  of  accessaries  after  the  fact  to  the 
offence  in  question  as  distinct  oft'enders.  Ih. 

A  conviction,  judgment  and  execution  upon  one  indictment  for  a  felony  not  capital,  is 


HISTORIA  PLACITORUM  CORONA.  575 

sary  preliminary  thereunto,  I  shall  first  consider  of  arrests  and  im- 
prisonment for  capital  offenses,  by  whom  it  may  be  done,  and  where 
lawful. 

Arrests  of  malefactors  are  of  two  kinds,  1.  Either  by  persons 
thereunto  by  law  deputed,  or  2.  By  private  persons. 

And  the  former  is  again  of  two  kinds.  Either,  1.  By  process  of 
law,  or  5.  Virtute  officii. 

The  former  again  is  of  two  kinds,  1.  Either  by  process  in  the 
king's  name,  2."0r  by  warrant  in  the  name  of  a  judge  or  justice 
thereunto  authorized,  and  that  either  in  writing  or  ore  ienus. 

I  shall  pursue  this  order,  and 

I.  Shall  begin  with  the  first  of  these,  namely,  arresting  by  virtue 
of  the  king's  writ. 

V    Regularly  no  process  issues  in  the  king's  name  and  by  his  writ  to 
apprehend  a  felon  or  other  malefactor,  unless  there  be  an 
indictment,  or  matter  of  record  in  the  court  upon  which  the  [  576  ] 
writ  issues. 

Aniiently  the  process  upon  an  appeal  or  an  indictment  of  felony 
was  only  one  Capias,  and  thereupon  an  Exigeyit.  22  ^Issiz.  81. 

By  the  statute  of  25  E.  3.  cap.  14.  there  are  to  be  a  Capias  and  an 
^lias  with  a  command  to  the  sheriif  to  seize  the  goods  of  the  felon, 
and  then  an  Exigent. 

But  it  should  s'eem  by  the  book  of  8.  H.  5,  6.  that  this, statute  ex- 
tended not  to  felony  of  death,  but  that  there  should  be  only  one 
Capias,  and  then  an  Exigent. 


a  bar  in  Tennessee  to  all  other  indictments  for  felonies  not  capital,  committed  previous  to 
such  conviction,  judgment  and  execution.    Crenshaw  v.  The  Slate,  Mart.  Sf  Yerg.  122. 

Under  an  indictment  for  horse-stealing,  it  was  held  that  to  constitute  a  felony  there 
must  be  a  trespass  in  the  original  taking.     The  State  v.  Braden,  2  Overton,  68. 

In  New  York,  if  a  prisoner  confined  in  the  county  prison,  on  a  conviction  of  petit 
larceny,  break  prison,  it  is  a  felony  for  which  he  may  be  sentenced  to  imprisonment 
in  the  !^tate  prison  for  a  period  not  exceeding  fourteen  years.  The  People  v.  Duell, 
3  Johns.  449. 

It  is  felony  for  a  man  who  elopes  with  another's  wife,  to  take  his  goods,  though  at  the 
solicitation  of  the  wife.     The  People  v.  Schuyler,  6  Cow.  572. 

It  is  very  much  to  be  doubted  whether  a  person  ought  ever  to  be  convicted  of  a  felony 
on  the  uncorroborated  testimony  of  a  prosecutor,  who  claims  the  property  in  question  to 
which  the  defendant  also  claims  title.  Where  the  transaction  was  attended  with  none 
of  the  usual  concomitants  of  larceny,  as  concealment,  for  example,  the  court,  upon  con- 
viction, ordered  a  new  trial.    The  State  v.  Kane,  1  McCord,  482. 

In  tliis  country,  where  conviction  of  a  felony  does  not  work  a  forfeiture,  a  civil  action 
is  not  merged  in  a  felony.    Robinson  v.  Culp,  Const.  Rep.  231. 

It  seems  that  one  guilty  of  a  felony  should  be  proceeded  against  criminally  before  a  civil 
action  can  be  brought,  because  he  should  not  be  convicted  of  a  felony  except  on  a  direct 
charge  of  a  crime.    lb. 

Wild  bees  remaining  in  the  tree  where  they  have  lived,  are  not  the  subject  of  felony, 
though  the  tree  is  on  the  land  of  another  who  has  confined  them  in  it.  Waliis  v.  Mease, 
3  I'invey  R.  .546. 

A  slave  in  South  Carolina  can  commit  a  felony.    The  State  v.  Wright,  4  McCord,  358. 

A  mere  solicitation  to  commit  a  felony  is  an  offence,  whether  it  is  committed  or  not. 
The  People  v.  Bush,  4  HiWs  N.  Y.  Rep.  133. 

It  has  been  held  in  New  York  that  petit  larceny  is  not  a  felony.  Carpenter  v.  Nixon^ 
5  Hill  R.  260.    Ward  v.  The  People,  3  Id.  395. 


576  HISTORIA  PLACITORUM  CORONA. 

Bat  by  the  statute  of  6  H.  6.  cap.  1.  if  A.  de  B.  in  comitahi  S. 
be  indicted  in  the  king's  bench  in  Middlesex,  there  shall  go  out  one 
Capias  into  Middlesex,  another  into  S.  and  each  shall  have  six 
weeks  at  least  between  the  T^e^/eand  return,  and  upon  Non  iiwentus 
returned  then  an  Exigent. 

But  if  he  be  not  named  of  another  county,  then  it  seems  only  one 
Capias  shall  issue,  where  the  party  is  indicted,  and  upon  that  an 
Exigent:  this  statute  was  made  during  the  king's  pleasure;  but  by 
the  proviso  in  the  statute  of  8  //.  6.  cap.  10.  it  seems  to  be  made 
perpetual. 

By  the  statute  of  8  //.  6,  cap.  10.  if./?,  de B.  in  com.  S.  be  indicted 
or  appealed  in  com.  IV.  before  justices  asssigned,  there  shall  go  out 
first  a  Capias  in  Com.  fV.  and  upon  No7i  inventus  returned,  a  Capias, 
with  proclamations  in  com.  S.  having  three  months  at  least  between 
the  Teste  s.nd  return,  or  otherwise  no  Exigent  to  issue;  but  the  prd- 
cess  in  the  king's  bench  is  excepted. 

But  this  statute  only  extends,  where  the  party  is  indicted  in  another 
county,  than  where  conversant. 

By  the  statute  of  5  E.  3.  cap.  11.  justices  of  oi/er  and  terminer 
may  issue  process  against  felons  in  a  foreign  county,  and  these 
processes  ought,  or  at  least  may  and  are  most  fit  to  issue  in  the 
king's  name  under  the  Teste  of  the  chief  judge,  for  which  pur- 
pose all  clerks  of  assizes  have  a  special  seal,  and  issue  their  pro- 
cess in  the  king's  name  in  case  of  felony,  where  they  go  to  the 
outlawry,  tho  some  other  warrants  are  made  in  the  name  of  the 
judge.  . 

And  in  all  cases  the  king's  writs  are   directed  to  the 
(]577]  sheriff,  and  he  executes  the  writ  himself,  or  by  his  warrant 
under  seal  to  the  bailiffs. 

And  upon  these  writs  the  sheriff  or  his  bailiff  may  break  open 
doors  to  take  the  offenders,  for  they  are  for  the  king  and  preserva- 
tion of  the  peace,  and  therefore  include  a  no7i  omit tas  propter  uli- 
quam  libertatem;  quod  vide  5  Co.  Rep.  92.  a. 

And  in  this  case  the  sheriff  or  his  bailiff  may  require  any  per- 
sons present  to  assist  him  in  execution  of  the  writ,  and  he  that 
refuseth  to  assist  him,  is  indictable  and  punishable  by  fine  and  im- 
prisonment. 

II.  The  second  kind  of  arrest  is  by  warrant  under  tlie  seal  of  the 
justices  thereunto  authorized,  as  justices  of  oi/er  and  terminer,  or  of 
gaol-delivery,  or  justices  of  peace. 

And  herein  these  things  are  considerable:  1.  What  are  the  essen- 
tials of  such  a  warrant,  without  which  it  is  void  in  law.  2.  Who 
may  grant  a  warrant  to  apprehend  a  felon.  3.  To  whom,  and  4.  In 
what  order  or  method  it  is  to  be  granted,  or  5.  Executed,  and  in 
what  case. 

1.  As  to  the  first  of  these. 

It  is  necessary  that  such  warrant  express  the  name  of  the  party  to 
be  taken:  for  a  wari-anl  granted  with  a  blank  and  sealed,  and  after 


HISTORIA  PLACITORUM  CORON.^.  577 

filled  up  with  the  name  of  the  party  to  be  taken  is  void  in  law. 
Dalt.  cap.  117.;;.  329.(«) 

It  must  be  under  seal,  tho  some  have  thought  it  sufficient  if  it  be 
in  writing  subscribed  by  the  justice,  Dalt.  cap.  117.  /;.  358.  vide  2. 
Co.  Inslit.  supra  statutum  de  fraiigentibus  prisonain,  p.  591.  and 
the  faiUng  in  these  things  will  make  the  warrant  void,  and  subject 
the  officer  to  a  false  imprisonment;  tho  in  some  cases,  the  want  of 
(due  formality  may  be  blameable  in  him  that  makes  the  warrant, 
yet  it  will  not  therefore  subject  the  officer  to  a  false  imprisonment,  if 
the  matter  be  within  the  jurisdiction  of  him  that  makes  it;  as  for 
instance, 

A  warrant  by  a  justice  to  apprehend  J.  S.  to  answer  such  matters 
as  shall  be  objected  against  him,  ex  parte  domini  regis,  without  ex- 
presshig  the  certainty  of  the  crime,  this  is  not  regular,  Lamhard' s 
justice  QS,  96.  2  Co.  Instit.  591.  615.  tho  Mr.  Dalt.  cap. 
117,  p.  329.  gives  instances  of  such  warrants  granted  by  [578] 
Po/^/^f/m  chief  justice. 

And  therefore,  if  before  commitment  a  person  so  apprehended 
should  be  removed  into  the  king's  bench  by  Habeas  Corpus,  upon 
such  a  warrant,  or  should  be  committed  upon  such  a  general  Mit- 
timus, he  should  be  discharged;  or  in  case  he  should  be  rescued 
upon  such  an  apprehension  by  such  a  warrant,  or  be  voluntarily  let 
go  by  him  that  apprehends  him,  (tho  it  may  be  the  true  cause  of  the 
warrant  were  felony,)  yet  it  not  being  expressed  in  the  warrant,  such 
an  escape  or  such  a  rescue  would  not  be  felony. 

Yet  it  may  excuse  the  officer  in  false  imprisonment,  if  the  true 
cause  were  felony,  or  any  misdemeanor  within  the  cognizance  of 
him  that  makes  the  warrant,  for  it  is  but  an  erroneous,  not  a  void 
warrant,  and  it  is  not  reasonable  to  suppose  the  officer  should  be 
conusant  of  the  formalities  of  law,  or  advise  with  counsel  upon  all 
occasions,  whether  the  warrant  were  in  strictness  of  law  regular, 
especially  in  such  a  case  where  the  error  of  this  nature  hath  been 
seconded  with  common  practice;  but  of  this  more  hereafter. 

2.  As  to  the  persons,  that  may  grant  a  warrant  for  apprehending 
a  felon. 

The  chief  justice  of  the  king's  bench  or  any  other  judge  of  that 
court  may  issue  a  warrant  in  his  own  name,  for  the  apprehending 
and  bringing  before  him  any  person  touching  whom  oath  is  made  of 
a  felony  committed,  or  of  suspicion  of  felony  upon  him,  into  any 
county  of  England  and  JVales,  for  they  are  intrusted  with  the  con- 
servation of  the  peace  through  all  England,  and  are  more  than 
justices  of  peace  or  oyer  and  terminer;  and  this  hath  been  usual  in 
all  ages.  . 

But  to  avoid  the  trouble  to  the  country  in  bringing  up  offenders 
they  usually  direct  their  warrants  to  apprehend  the  parties,  and 
bring  them  before  some  justice  of  peace  near  adjoining,  either  to  be 
examined  or  bound  over  to  the  sessions,  and  farther  to  be  proceeded 
against  according  to  law. 

(a)  New  Edit.  p.  574. 


578  HISTORIA  PLACITORUM  CORONiE. 

And  thus  their  warrants  ought  to  run  in  cases  of  surety  of  the 
peace  or  good  behaviour  against  a  person  in  another  county,  than 
where  they  are,  by  reason  of  the  statute  of  21  Jac.  cap.  8. 

Justices  of  oyer  and  terminer  may  also  issue  their  war- 
r  579  ~\  rants  in  the  counties  within  their  commission  for  apprehend- 
ing felons  or  other  malefactors,  or  for  surety  of  the  peace 
within  their  limits  ;  qiisere,  whether  they  may  not  issue  their  warrants 
for  any  indicted  of  felony  within  their  precincts,  tho  tiiey  are  abroad  « 
in  a  foreign  county,  by  the  statute  of  5  E.  3.  before  mentioned? 

Justices  of  peace  may  also  issue  their  warrants  within  the  precincts 
of  their  commission  for  apprehending  persons  charged  of  crimes 
within  the  cognizance  of  the  sessions  of  the  peace,  and  bind  them 
over  to  appear  at  the  sessions,  and  this,  tho  the  offender  be  not  yet 
indicted. 

And  therefore  the  opinion  of  my  lord  CoJce,  4  Inst  it.  111.  is  too 
strait-laced  in  this  case,  and,  if  it  should  be  received,  would  obstruct 
the  peace  and  good  order  of  the  kingdom;  and  the  book  of  14  H.  8. 
16.  upon  which  he  grounded  his  opinion,  was  no  solemn  resolution, 
but  a  sudden  and  extrajudicial  opinion,  and  the  defendant  had  liberty 
to  mend  his  plea  as  to  the  circumstance  of  time,  to  the  end  it  might , 
^be  judicially  settled  by  demurrer,  which  was  never  done;  and  the 
constant  practice  hath  obtained  contrary  to  that  opinion;  quod  vide 
Dalt.  cap.  117.(6) 

And  whereas  my  lord  Coke^  ubi  supra,  s^Jiih  also,  that  a  justice  of 
peace  upon  oath  made  by  A.  of  a  felony  committed,  and  that  Ji.  sus- 
pects B.  and  shews  his  cause,  cannot  issue  a  warrant  to  bring  B. 
before  him  for  farther  examination,  and  thereupon  commit  or  bind 
him  over  to  the  assizes  or  sessions,  because  it  must  be  the  proper  sus- 
picion of  Ji.  himself,  and  Ji.  may  arrest  him  upon  the  score  of  his. 
own  suspicion,  but  not  by  warrant  of  the  justice;  I  think  the  law  is 
not  so,  and  the  constant  practice  in  all  places  hath  obtained  against' 
it,  and  it  would  be  pernicious  to  the  kingdom  if  it  should  be  as  he  de- 
livers it, for  malefactors  would  escape  unexamined  and  undiscovered; 
for  a  man  may  have  a  probable  and  strong  presumption  of  the  guilt 
of  a  person,  whom  yet  he  cannot  positively  swear  to  be  guilty. 

Therefore  I  think,  that  if  Ji.  makes  oath  before  a  justice  of  peace 
of  a  felony  committed  in  fact,  and  that  he  suspects  B.  and 
[  580  ]  shews  probable  cause  of  suspicion  the  justice  may  grant  his 
warrant  to  apprehend  B.  and  to  bring  him  before  him,  of 
some  other  justice  of  peace  to  be  examined,  and  to  be  farther  pro- 
ceeded against,  as  to  law  shall  appertain;  and  upon  this  warrant  the 
constable,  or  he  to  whom  the  warrant  is  directed,  may  arrest  him, 
and  if  occasion  be  may  break  doors  to  take  him,  if  within  a  house, 
and  will  not  upon  demand  render  himself,  as  well  as  if  it  were  an 
express  and  positive  charge  of  felony  sworn  by  JI.  against'him,  and 
so  hath  common  practice  obtained  notwithstanding  thatopmion:  vide 
statute  IVestm.  1  cap.  15.(c)  13  E.  4.  9.  a. 

(6)  New  Edit.  p.  57G.  (c)  2  Co.  Inst.  p.  185. 


HISTORIA  PLACITORUM  CORONiE.  580 

But  a  general  warrant  upon  a  complaint  of  a  robbery  to  apprehend 
all  persons  suspected,  and  to  bring  them  before,  ^-c.  was  ruled  void, 
and  false  imprisonment  lies  against  him  that  takes  a  man  upon  such 
a  warrant,  P.  24  Car.  l.upon  evidence  in  a  case  of  justice  Swallow^ s 
warrant  before  justice  Roll. 

If  A.  hath  committed  treason,  tho  the  justices  of  the  peace  have 
no  cognizance  of  it  as  treason,  yet  they  have  cognizance  of  it  as  a 
felony,  and  as  a  breach  of  the  peace,  and  therefore  a  justice  of  peace 
upon  information  upon  oath  may  issue  his  warrant  to  take  him,  and 
may  take  his  examination,  and  commit  him  to  prison. 

Jl.  commits  a  felony  in  the  county  of  B.  and  then  goes  into  the 
county  of  C.  upon  information  given  to  a  justice  of  peace  of  the 
county  of  C  he  may  issue  his  warrant  to  take  him,  may  take  his 
examination,  and  commit  him  to  gaol  in  the  county  of  C.  from 
whence  he  may  he  removed  by  Habeas  Corpus  to  the  county  of  B. 
for  his  trial. 

If  ^^.  commit  a  felony  in  the  county  of  B.  and  upon  a  warrant 
issued  against  him  by  a  justice  of  peace  in  the  county  of  B.  he  is  pur- 
sued and  flies  into  the  county  of  C.  and  there  is  taken,  he  must  not 
by  virtue  of  that  warrant  be  carried  to  a  justice  of  peace  of  the  county 
oi  B.  where  he  committed  the  felony,  but  to  a  justice  of  peace  in  the 
county  of  C.  where  he  was  taken. 

But  if  A.  were  taken  by  the  warrant  in  the  county  of  B.  and  break 
away  into  the  county  of  C.  and  be  there  taken  upon  fresh 
suit  by  them  that  first  took  him,  he  may  be  either  brought  [  581  ] 
to  a  justice  of  the  county  of  C.  where  he  was  last  taken,  or 
before  the  justice  of  the  county  of  ^.  by  whose  warrant  he  was  first 
taken  ;  for  in  supposition  of  law  he  was  always  in  custody:  vide  du- 
bitahtr,  13.  E.  4.  9.  a. 

If./?,  be  in  commission  of  the  peace  in  the  county  of  i?.  and  hap- 
pen to  be  in  the  county  of  C.  and  there  complaint  is  made  to  him  of 
a  felony  in  the  county  of  B.  where  he  is  in  commission,  as  he  can- 
not issue  a  warrant  out  to  apprehend  the  party,  so  neither  can  he  im- 
prison in  the  county  of  C.  because  an  act  of  jurisdiction,  but  he  may 
take  an  oath  of  a  party  robbed  in  pursuance  of  the  statute  of  27  Eliz. 
or  he  may  take  an  examination,  or  information,  or  recognizance  in  a 
foreign  county,  but  cannot  compel  them  by  imprisonment.  P.  7  Car. 
1.  Croke,  n.  3  Helyar\s  case,((/)  Dalt.  cap.  6.  and  117.(e) 

But  if./?,  be  a  justice  of  peace  in  two  adjacent  counties,  tho  by 
several  commissions,  as  the  recorder  oi  London  is,  nothing  is  more 
usual  for  him,  that  whilst  he  lives  in  one  county  to  send  .his  warrants 
to  apprehend  malefactors  in  another,  and  to  send  them  to  Newgate, 
which  is  the  common  gaol  of  both  counties,  London  and  Middlesex. 

3.  Touching  the  persons  to  whom  a  warrant  may  be  directed. 

The  justice  that  issues  the  warrant,  may  direct  it  to  a  private  per- 
son if  he  please,  and  it  is  good ;  but  he  is  not  compellable  to  exe- 
cute it,  unless  he  be  a  proper  officer.  14  H.  8.  16.  Dalt.  cap.  117. 
p-  332.(/) 

(d)  Cro.  Car.  211.  (e)  New  Edit.  p.  25  ^  575.  (/)  New  Edit.  p.  577. 


581  HISTORIA  PLACITORUM  CORONiE. 

The  warrant  is  ordinarily  directed  to  the  sheriff  or  constables,  and 
they  are  indictable,  and  subject  thereupon  to  a  fine  and  imprisonment 
if  they  neglect  or  refuse  it. 

If  directed  to  the  sheriff,  he  may  make  a  warrant  to  his  baihff  fo 
execute  it. 

If  to  a  constable,  tithing-man,  <5'C.  he  must  execute  it  himself,  and 
may  not  substitute  another ;  but  he  may  call  any  persons  to  assist  him, 
and  they  are  bound  to  assist  him,  and  are  indictable  if  they  neglect 
or  refuse  to  assist :  vide  Dalt.  ubi  supra. 

If  directed  to  the  constable  oi  D.  he  is  not  bound  to'ex- 
[  582  ]  ecute  the  warrant  out  of  the  precincts  of  his  constablewick, 
but  if  he  doth  it  out  of  his  constablewick,  it  is  good;  and  so 
it  was  ruled  in  Norfolk  in  an  action  of  trespass. 

4.  Touching  the  order  in  granting  it. 

1.  It  is  convenient,  tho  not  always  necessary,  to  take  an  informa- 
tion upon  oath  of  the  person  that  desires  the  warrant,  that  a  felony 
was  committed,  that  he  doth  suspect  or  know  J.  S.  to  be  the  felon ; 
and  if  suspected,  then  to  set  down  the  causes  of  his  suspicion. 

2.  If  the  charge  of  the  felony  be  positive  and  express,  theft  it  is  fit 
to  bind  the  party  by  recognizance  to  prosecute,  before  the  warrant 
be  issued. 

But  if  it  be  only  a  charge  of  suspicion,  and  the  business  requires 
farther  examination,  then  it  is  neither  necessary  nor  fit  to  bind  over 
the  party  to  prosecute;  for  possibly  upon  the  bringing  in  of  the  party 
accused,  and  farther  examination  of  the  fact,  there  may  be  cause  to 
discharge  him,  and  thus  I  think  Mr.  Balton  to  be  intended,  ca/j.  117. 
J).  334.(^)  the  case  before  chief  justice  Flemming. 

3.  The  warrant  may  issue  to  bring  the  party  before  the  justice  that 
granted  the  warrant  specially,  and  then  the  officer  is  bound  to  bring 
him  before  the  same  justice;  but  if  the  warrant  be  to  bring  him  be- 
fore any  justice,  then  it  is  in  the  election  of  the  officer  to  bring  him 
before  what  justice  of  the  county  he  thinks  fit,  and  not  in  the  election 
of  the  prisoner.    5  Co.  Eep.  59.  b.  Foster's  case. 

5.  Touching  the  demeanor  of  the  officer  in  executing  the  warrant. 
If  it  be  a  warrant  for  felony,  or  a  warrant  for  the  surety  of  the 

peace,  the  officer  may  break  open  the  door,  if  he  be  sure  the  offender 
is  there,  if  after  acquainting  them  of  the  business,  and  demanding  the 
prisoner,  he  refuses  to  open  the  door,  tho  the  party  be  not  indicted; 
and  this  is  the  constant  practice  against  the  opinion  of  my  lord  Co/ce, 
4  Inst.  177.  guod  vide  Dalt.  cap.  117.  p.  333. (A) 

And  so  it  is  if  the  warrant  be  only  upon  suspicion  of 
[  583  ]  felony,  as  hath  been  said  before,  for  in  both  cases  the  pro- 
cess is  for  the  king,  and  therefore  a  Non  omittas  is  implied, 
and  he  that  diligently  considereth  the  statute  of  West.  1.  cap.  \5.{i) 
and  the  statute  of  2  ^'3  P.  <§•  M.  cap.  10.  will  find  that  an  imprison- 
ment may  be  tnade  by  the  justice,  as  well  for  suspicion  of  felony,  as 
for  an  absolute  charge  of  felony,  and  that  as  well  before  indictment 
as  after. 

(g-)  New  Edit.  cap.  169.  p.  579.  (Ji)  New  Edit.  p.  578.  (0  2  Co.  Inst.  185. 


HISTORIA  PLACITORUM  CORONA.  583 

And  by  the  book  of  13  E.  4,  9.  a.  A  man  that  arrests  upon  sus- 
picion of  felony,  may  break  open  doors,  if  the  party  refuses  upon 
demand  to  open  them,  and  much  more  may  it  be  done  by  tiie  justice's 
warrant. 

If  the  officer  be  demanded  he  must  show  his  warrant,  but  if  he 
doth  it  virtiite  officii  as  a  constable,  4'c.  it  is  sufficient  to  notify  that 
he  is  the  constable,  or  that  he  arrests  in  the  king's  name.  Dalt.  iibi 
supra,  6  Co.  Rep.  54.  a.  9  Co.  Rep.  69.  a.  Mackally^s  case. 

Lastly,  What  is  to  be  done  after  the  warrant  served,  and  when 
the  person  accused  is  brought  before  the  justice  thereupon. 

If  there  be  no  cause  to  commit  him  found  by  the  justice  upon 
examination  of  the  fact,  he  may  discharge  him. 

If  the  case  be  bailable,  he  may  bail  them. 

If  he  have  no  bail,  or  the  case  appears  not  to  be  bailable,  he  must 
commit  him. 

And  being  either  bailed  or  committed^  he  is  not  to  be  discharged 
till  he  be  convicted  or  acquitted,  or  delivered  by  proclamation.  Co. 
P.  C.  cap.  100.77.209. 

And  this  leads  me  to  the  Mittimus,  or  the  warrant  to  the  gaoler 
to  receive  him;  and  this  is  the  ground  of  the  felony  in  case  of  a 
breach  of  prison. 

^ly  lord  Coke,  2  Inst.  591.  makes  three  essential  parts  of  the 
Mitti?nus. 

1.  That  it  be  in  writing  sealed  by  the  justice  that  commits,  and 
without  this  part  the  commitment  is  unlawful,  the  gaoler  is  liable  to 
a  false  imprisonment,  and  the  wilful  escape  by  the  gaoler,  or  breach 
of  prison  by  the  prisoner,  makes  no  felony. 

But  this  must  not  be  intended  of  a  commitment  in  a  court 
of  record,  as  the  king's  bench,  gaol  delivery,  or  sessions  of  [  584  ] 
the  peace,  for  there  the  record  itself,  or  the  memorial  thereof, 
which  may  at  any  time  be  entered  of  record,  are  a  sufficient  warrant 
without  any  warrant  under  seal. 

2.  That  it  express  the  cause  for  which  he  is  committed,  namely 
felony,  and  what  kind  of  felony. 

This  seems  requisite  to  make  the  voluntary  escape  or  breach  of 
prison  felony,  and  also  it  is  necessary  upon  return  of  the  Habeas 
Corpus  out  of  the  king's  bench,  because  that  is  in  nature  of  a  writ 
of  right  or  writ  of  error  to  determine,  whether  the  imprisonment  be 
good  or  erroneous. 

But  it  seems  not  to  make  the  commitment  absolutely  void,  so  as 
to  subject  the  gaoler  to  a  false  imprisonment,  but  it  lies  in  averment 
to  excuse  the  gaoler  or  officer,  that  the  matter  was  for  felony. 

And  also  upon  such  a  general  warrant  without  expressing  any 
felony  or  treason,  or  surety  of  the  peace,  the  constable  cannot  break 
open  a  door.      T.  9  Jac.  B.  R.  1  Bulstrode  146.  Foster's  case. 

3.  That  it  have  an  apt  conclusion,  viz.  There  to  remain  till 
deliver d  by  law. 

But  if  the  conclusion  be  irregular,  I  think  it  makes  not  the  warrant 


584  HISTORIA  PLACITORUM  CORONA. 

void,  but  the  law  will  reject  that  which  is  surplusage,  and  the  rest 
shall  stand. 

And  therefore  if  the  cause  be  expressed,  and  the  conclusion  irregu- 
lar, as  till  farther  order  s^iven  by  a  justice,  yet  a  breach  of  prison 
under  such  a  warrant  will  be  felony,  yea,  if  the  party  be  removed  by 
Habeas  Cojyus,  tho  the  conclusion  be  irregular,  yet  if  the  matter 
appears  to  be  such,  for  which  he  is  to  remain  in  custody,  or  be  bailed, 
he  shall  be  bailed  or  committed  as  the  case  requires,  and  not  dis- 
charged ;  but  the  idle  conclusion  shall  be  rejected. 

And  therefore  I  do  think  that  such  a  warrant  is  a  good  justification 
in  a  false  imprisonment,  tho  the  right  conclusion  be  omitted,  or  tho 
the  wrong  conclusion  be  inserted,  if  the  matter  of  the  Mittimvs  be 
otherwise  sufficient  to  charge  him  in  custody,  and  therefore  it  is  a 
lawful  warrant  notwithstanding  the  omission  or  incongruity 
r  585  1  of  the  conclusion,  so  as  to  make  the  voluntary  permission  of 
an  escape  or  the  breach  of  prison  felony. 

By  the  statute  of  23  H.  8.  cap.  2.  the  felons  are  to  be  sent  to  the 
common  gaol:(/)  and  by  the  statute  of  4  jE.  3.  cap.  10.  the  sheriffs 
and  gaolers  are  bound  to  receive  them,  whether  committed  by  jus- 
tices, or  attached  ex  officio  by  constables. 

Previous  to  the  commitment  of  felons,  or  such  as  are  charged 
therewith,  there  are  required  three  things,  1.  The  examination  of 
the  person  accused,  but  without  oath.  2.  The  farther  information 
of  accusers  and  witnesses  upon  oath.  3.  The  binding  over  of  the 
prosecutor  and  witnesses  unto  the  next  assizes  or  sessions  of  the 
peace,  as  the  case  requires. 

1.  The  examination  of  the  person  accused,  which  ought  not  to  be 
upon  oath,  and  these  examinations  ought  to  be  put  in  writing,  and 
returned  or  certified  to  the  next  gaol  delivery  or  sessions  of  the  peace, 
as  the  case  shall  require,  by  the  statute  of  2  (§'  3  P.  (§•  M.  cap.  10. 
and  being  sworn  by  the  justice  or  his  clerk  to  be  truly  taken,  may  be 
given  in  evidence  against  the  offender.(A^) 

And  in  order  thereunto,  if  by  some  reasonable  occasion  the  justice 
cannot  at  the  return  of  the  warrant  take  the  examination,  he  may  by 
word  of  mouth  command  the  constable,  or  any  other  person,  to  de- 
tain in  custody  the  prisoner  till  the  next  day,  and  then  to  bring  him 
before  the  justice  for  further  examination;  and  this  detainer  is  justi- 
fiable by  the  constable,  or  any  other  person  without  showing  the 
particular  cause  for  which  he   was  to  be  examined,  or  any  war- 

(i)  And  not  elsewhere;  so  that  it  sliould  seem  that  commitments  to  New  Prison  or 
the  Gate-house  are  irregular;  see  2  Co.  Inst.  43.  Cro.  Eliz  830.  and  of  this  opinion  was 
chief  justice  Holt,  in  the  case  of  Kendal  and  Roe,  State  Tr,  Vol.  IV.  ^.  862.  See  also 
5  H.  4.  cd-p.  10.  which  ordains,  "That  none  be  imprisoned  by  justices  of  the  peace,  save 
only  in  the  common  gaol."    \)  Co.  Rep.  119.  b. 

(k)  Altlio  tlfey  be  not  evidence  against  any  other  person  named  in  them;  it  was  there- 
fore very  irregular  in  the  chief  justice  to  refuse  reading  the  examinations  of  Slern  and 
Boroski  at  their  trial;  see  State  Tr.  Vol.  III.  p.  470.  But  qucere  by  scrjeant  TVi/son,  if- 
the  chief  justice  was  not  right  in  such  rcfusiil?  For  by  ihe  opinion  of  some  judges  now 
livin-j-,  the  statute  datli  not  extend  to  the  examination  of  the  party  accused,  unless  he 
signed  his  examination,  but  only  to  the  witnesses  or  persons  accusing. 


HISTORIA  PLACITORUM  CORON^E.  585 

rant  in  scrip/is.    T.  37  Bliz.    Hot.  244.   B.  R.  Broughton  and 

Marshaw.{l) 

But  the  time  of  the  detainer  must  be  reasonable,  therefore 
a  justice  cannot  justify  the  detainer  of  such  a  person  sixteen  [  586  ] 
or  twenty  days  in  order  to  such  examination. (m) 

2.  He  must  take  information  of  the  prosecutor  or  witnesses  in 
writing  upon  oath,  and  return  or  certify  them  at  the  next  sessions 
or  gaol-deUvery,  and  these  being  upon  the  trial  sworn  to  be  truly 
taken  by  the  justice  or  his  clerk,  (S*c.  may  be  given  in  evidence  against 
the  prisoner,  if  the  witnesses  be  dead  or  not  able  to  travel. 

3.  Before  he  commit  the  prisoner,  he  is  to  take  surety  of  the  pro- 
secutor to  prefer  his  bill  of  indictment  at  the  next  gaol  delivery  or 
sessions,  and  likewise  to  give  evidence;  but  if  he  be  not  the  accuser, 
but  an  unconcerned  party  that  can  testify,  the  justice  may  bind  him 
over  to  give  evidence  ;  and  upon  refusal  in  either  case  may  commit 
the  refuser  to  gaol.  Slamf.  P.  C.  p.  163.  a.  Dalt.  cap.  116.  p.  326. (ti) 
2  (§•  3  P.  <5-  M.  cap.  10.  and  Dalt.  cap.  20.  p.  55.(o) 

And  thus  far  of  arrests  by  warrant  in  writing. 

Next  come  to  be  considered  arrests  by  command  ore  tenus,  or  by 
order. 

The  chief  justice,  or  other  justice  of  the  king's  bench,  may  com- 
mand ore  tenus  the  marshal  or  any  of  his  deputies,  commonly  called 
tipstaves,  to  arrest  any  person,  and  such  command  is  a  good  justifi- 
cation in  false  imprisonment  brought;  altho  1.  It  be  not  in  writing. 
2.  Altho  no  cause  is  expressed  in  the  command,  but  only  generally 
to  answer  such  things  as  shall  be  objected  against  him  ex  parte  domini 
regis.  3.  And  tho  the  command  be  ita  quod  habeas  corpus  coram 
capitali  justiciario,  Sf-c.  quandocunque,  4'C.  for  it  shall  be  intended, 
when  the  party  complains.  4.  Altho  the  defendant  declares  not  in  his 
justification  what  he  did  with  him  in  the  mean  time.  P.  11  Car.  B. 
R.  Throgmorton  and  Allen.,  adjudged  upon  a  demurrer.(*) 

Altho,  as  hath  been  said,  a  justice  cannot  grant  a  warrant  to  ap- 
prehend all  persons  suspected,  but  must  name  their  names,  yet  I  have 
known  in  the  king's  bench  upon  a  riot  committed  in  the 
night  by  persons  disguised,  and  whose  names  have  not  been  ["587  1 
known,  the  court  hath  made  an  order  to  apprehend  persons 
that  the  party,  who  was  injured,  suspects,  and  to  bring  them  into 
the  court  to  be  examined,  and  such  order  of  the  court  is  a  good  war- 
rant for  the  sheriff"  or  constable  to  do  it ;  but  what  is  thus  done  in  the 
highest  court  of  ordinary  justice,  is  not  to  be  a  pattern  for  particular 
justices  or  inferior  jurisdictions. 

I  have  now  done  with  arrests  by  writs  or  warrants. 

I  come  in  the  next  place  to  arrests,  ex  officio,  without  any  warrant. 

(Z)  This  case  is  reported  in  Moore,  408.  by  the  name  of  Broughton  and  MuhJioe. 
{m)  See  the  case  ofScamge  and  Tateham,  Cro.  Eliz,  829.  where  it  was  adjudged,  that 
the  time  of  detainer  must  not  exceed  three  days, 
(n)  New  Edit.  cap.  168.  p.  572. 
(0)  New  Edit.  cap.  40.  p.  106.  («)  2  R.  A.  p.  558. 

VOL.    I. — 51 


687  HISTORIA  PLACITORUM  CORONA. 

If  an  affray  be  made  in  the  presence  of  a  justice  of  peace,  or  if  a 
felon  be  in  his  presence,  he  may  arrest  him,  and  detain  him  ex  officio 
till  he  can  make  a  warrant  to  send  him  to  gaol,  but  then  the  warrant 
must  be  in  writing  to  the  gaoler,  P.  23.  Car.  B.  R.  SandforcTs  case, 
and  so  he  may  by  word  command  any  present  to  arrest.  Dalt.  cap. 
in.  p.  32S.{p) 

A  constable  may  ex  officio  arrest  a  breaker  of  the  peace  in  his  view, 
and  keep  him  in  his  house,  or  in  the  stocks,  till  he  can  bring  him  be- 
fore a  justice  of  peace. 

So  if  ,d.  be  dangerously  hurt,  and  the  common  voice  is,  that  B. 
hurt  him,  or  if  C.  thereupon  comes  to  the  constable,  and  tells  him  that 
B.  hurt  him,  the  constable  may  imprison  him  till  he  knows  whether 
t/?.  dies  or  lives,  T.  43  Eliz.  B.  R.  Dumbletoi's  case,  or  can  bring 
him  before  a  justice. 

So  if  a  felony  be  committed,  and  */?.  acquaint  him  that  B.  did  it, 
the  constable  may  take  him  and  imprison  him,  at  least  till  he  can 
bring  him  before  some  justice  of  peace. 

But  if  there  be  only  an  aftVay,  and  not  in  view  of  the  constable,  it 
hath  been  held  he  cannot  arrest  him  without  a  warrant  from  the  jus- 
tice; but  it  seems  he  may  to  bring  the  offender  before  a  justice,  tho 
not  compellible. 

Lastly,  I  come  to  the  authority  of  every  private  person  in  relation 
to  arrests  of  felons. 

\i  A.  commit  a  felony,  B.  who  is  a  private  person,  may  arrest  him 

for  that  felony  without  any  warrant;  nay  farther,  if  .^.  will 

[  588  3  i^ot  suffer  himself  to  be  taken,  but  either  resists  or  flies,  so 

that  he  cannot  be  taken,  unless  he  be  slain,  if  B.  or  any  in 

assistance  in  that  case  of  necessity  kill  him,  it  is  no  felony;  de  quo 

antea,p.  481. 

If  A.  commit  a  felony  in  the  sight  of  B.  and  B.  uses  not  his  best 
endeavours  to  apprehend  him,  or  to  raise  hue  and  cry  upon  him,  it  is 
punishable  by  fine  and  imprisonment.     Co.  P.  C.  p.  53. 

If  Ji.  strike  B.  dangerously  in  the  presence  of  C.  C.  may  justify 
the  imprisoning  of  ^d.  till  he  can  bring  him  before  a  justice,  or  de- 
liver him  to  the  constable,  tho  it  be  not  felony  till  death. 

If  a  hue  and  cry  be  levied  upon  a  felony,  and  come  to  the  town, 
B.  the  constable,  and  those  of  the  town  are  bound  to  apprehend  the 
felon  if  in  the  town,  or  if  not  in  the  town,  then  to  follow  the  hue  and 
cry,  otherwise  they  are  punishable  upon  an  indictment.  Co.  P.  C. 
cap.  52. 

If  the  constable  in  pursuit  of  a  felon  require  the  aid  of  J.  S.  he  is 
bound  by  law  to  assist  him,  and  is  finable  for  his  neglect.(y) 

If  a  felony  be  committed  in  fact,  and  v^.  suspects  B.  did  it,  and 
hath  probable  cause  of  suspicion,  .^.  may  arrest  i?.  for  it,  and  justify 
it  in  an  action  of  false  imprisonment.     2  E.  4.  8,  b. 

The  causes  of  suspicion  are  many,  as  common  fame  finding  goods 
upon  him,  and  many  more,  de  quibus  vide  Dalt.  cup.  llS.(r) 

(jP)  New  Edit.  cap.  169.  p.  574.         (5)  13  //.  7.  10.  b.  (r)  New  Edit.  cap.  170. 


HISTORIA  PLACITORUM  CORONA.  588 

If  a  felony  be  committed,  and  A.  suspects  B.  and  B.  being  in  his 
house  refuse  to  open  the  doors,  or  render  himself,  it  seems  A.  may 
break  open  the  doors  to  take  him;  and  so  may  the  constable,  if  A. 
acquaint  him  therewith,  especially  if  A.  be  present,  13  ^.  4.  9.  a. 
tho  (as  hath  been  said)  my  lord  Coke,A  Inst.  111.  be  to  the  contrary; 
yet  the  common  practice  and  opinion  hath  obtained  in  that  case 
against  my  lord  Coke,  Dalt.  cap.  9S.  p.  249. ,(5)  cap.  78.  p.  204.,(/) 
7  E.  3.  16.  b. 

There  are  special  cases  where  a  constable  having  received  informa- 
tion of  the  misdemeanors  following,  or  any  private  person 
without  a  warrant  may  arrest  and  break  open  doors  to  arrest  [  589  ] 
if  they  within  refuse  to  open  them  upon  demand,  or  to  deliver 
up  the  party. 

1.  Where  a  felony  or  treason  is  committed,  and  the  offender  is 
within  the  house. 

2.  Where  a  felony  or  treason  is  committed,  and  a  man  suspects 
J.  S.  who  is  in  the  house,  and  hath  probable  cause  of  such  suspicion, 
tho  the  party  be  not  indicted.    7  E.  3.  16.  b.  13.  E.  4.  9.  a. 

3.  Where  A.  hath  dangerously  wounded  B.  and  then  A.  flies  into 
the  house,  whether  it  were  done  in  the  presence  of  the  constable,  or 
him  that  arrests,  or  not.   7  E.  3.  16.  b.  Crompt.  171.  a. 

4.  Where  there  is  an  affray  made  in  a  house,  and  the  doors  are 
shut,  and  are  refused  to  be  opened,  during  such  affray  the  constable 
or  any  other  may  break  open  the  doors  to  preserve  the  peace,  and 
prevent  blood  shed;  but  after  the  affray,  it  cannot  be  done  without 
a  warrant,  unless  a  man  be  dangerously  wounded  or  killed  in  the 
affray. 

Yet  to  avoid  question  in  these  cases,  it  is  best  to  obtain  the  warrant 
of  a  justice,  if  the  time  and  necessity  will  permit. 

When  a  private  person  hath  arrested  a  felon,  or  one  suspected  of 
felony,  he  may  detain  him  in  custody  till  he  can  reasonably  dismiss 
himself  of  him;  but  with  as  much  speed  as  conveniently  he  can,  he 
may  do  either  of  these  things. 

1.  He  may  carry  him  to  the  common  gaol,  20  E.  4.  6.  b.  but  that 
is  now  rarely  done. 

2.  He  may  deliver  him  to  the  constable  of  the  vill,  who  may  either 
carry  him  to  the  common  gaol,  vide  4.  E.  3.  cap.  10.  or  to  a  justice  of 
peace  to  be  examined,  and  farther  proceeded  against  as  case  shall 
require.    10  E.  4.(w)  17  6. 

3.  Or  he  may  carry  him  immediately  to  any  justice  of  peace  of  the 
county  where  he  is  taken,  who  upon  examination  may  discharge, 
bail,  or  commit  him,  as  the  case  shall  require. 

And  the  bringing  the  offender  either  by  the  constable  or  [590] 
private  person  to  a  justice  of  peace  is  most  usual  and  safe, 
because  a  gaoler  will  expect  a  Mittimus  iov  his  warrant  of  detaining. 

And  thus  far  of  arrests. 

(«^  New  Edit.  p.  482.  (0  New  Edit.  p.  426.. 

(u)  This  is  the  same  year  with  49  H.  6,  and  is  so  printed  in  the  year-book. 


590  HISTORIA  PLACITORUM  CORONiE. 


CHAPTER  LI. 

OF    FELONY    BY  VOLUNTARY    ESCAPES,    AND    TOUCHING    FELONY    BY 
ESCAPES  OF  FELONS. 

Having  in  a  former  chapter  said  somewhat  of  arrests,  it  remains 
that  somewhat  be  said  touching  those  felonies  that  relate  to  the  es- 
cape of  persons  arrested  or  imprisoned. 

And  these  escapes  are  of  three  kinds,  1.  By  the  person  that  hath 
the  felon  in  his  custody, and  this  is  properly  an  escape;  and  2.  When 
the  escape  is  caused  by  a  stranger,  and  this  is  ordinarily  called  a  res- 
cue of  a  felon.  3.  By  the  party  himself,  which  is  of  two  kinds,  viz. 
1.  Without  any  act  of  force,  and  this  is  a  simple  escape.  2.  With  an 
act  of  force,  viz.  by  breach  of  prison. 

As  to  the  Jirst,  touching  an  escape  separate  by  the  person  that 
hath  a  felon  in  custody,  which  is  properly  an  escape;  and  this  is  of 
two  kinds,  voluntary  and  negligent. 

And  Jirst  concerning  the  voluntary  escape. 

A  voluntary  escape  is  when  any  person  having  a  felon  lawfully  in 

his  custody  voluntarily  permits  him  to  escape  from  it,  or  go  at  large, 

and  this  is  felony  in  case  the  person  be  imprisoned  for  felony,  and 

treason  in  case  the  person  be  imprisoned  for  treason ;  for  the 

[  591  ]  latter  enough  hath  been  said  before;  touching  the  former  in 

this  place. 

And  altho  Mr.  Stamford^  Lib.  I.  cap.  26,  27,  28,  29,  30,  31.  hath 
collected  almost  all  that  can  be  well  said  in  this  case,  yet  I  shall  pro- 
ceed distinctly  herein. 

And  therein  I  shall  as  near  as  I  can,  observe  this  order. 

1.  I  shall  consider  who  shall  be  said  a  felon,  whose  escape  makes 
a  felony  in  him  that  voluntarily  suffers  it;i  2.  What  shall  be  said  a 
having  of  such  a  felon  in  his  custody.  3.  Who  shall  be  said  a  per- 
son lawfully  having  such  a  felon  in  his  custody.  4.  What  shall  be 
said  a  voluntary  escape  of  such  a  felon  out  of  his  custody.  5.  Who 
shall  be  said  voluntarily  to  suffer  such  a  felon  to  escape.  6.  What 
is  the  offense  of  such  a  voluntary  permission  of  an  escape,  and  where, 
and  how  punishable. 

And  tho  I  apply  these  particulars  to  a  voluntary  escape,  yet  many 
of  them  are  applicable  unto,  and  useful  for  the  learning  of  a  negli- 
gent escape. 

I.  Who  shall  be  said  a  felon,  whose  voluntary  escape  is  felony  in 
him  that  so  permits  it. 

If  ..:?.  gives  B.  a  mortal  wound,  and  before  B.  dies  the  constable 
takes  Jl.  into  custody,  either  with  or  without  a  justice's  warrant,  and 
then  lets  him  voluntarily  escape  before  B.  is  dead,  and  then  B.  dies 
tho  as  between  A.  and  B.  or  »^.  and  the  king,  this  is  is  a  felony  from 
the  stroke  given,  and  the  attainder  of  Jl.  as  to  the  forfeiture  of  his 
lands  relates  to  the  stroke;  yet  this  is  no  felony  in  the  constable,  but 


HISTORIA  PLACITORUM  CORONA.  591 

only  a  misdemeanor  punishable  by  fine  and  imprisonment.    11  //.  4, 
12  b.  Ploivd.  Com.  258.  b. 

If  ^.  be  indicted  for  felony,  and  taken  by  Capias,  or  by  the  warrant 
of  a  justice,  or  by  the  constable  6,-c.  and  committed  to  prison,  and  the 
gaoler  suffers-.^,  to  escape  voluntarily,  this  is  the  escape  of  a  felon, 
tho  -'?.  be  not  attainted  at  the  time  of  the  escape,  but  the  gaoler  shall 
not  be  arraigned  thereupon  till  after  the  attainder  of  t^.  de  quo  infra. 

If  a  felony  be  in  fact  committed,  and  the  constable  takes  A.  upon 
suspicion  of  felony,  and  after  voluntarily  suffers  him  to  go 
at  large,  tho  A.  be  not  then  indicted,  yet  this  is  a  felonious  [  592  ]] 
escape  in  the  constable,  tho  42  Assiz.  5.  be  othervvise,(«)  yet 
44  Assiz.  12  Dy.  99.  a.  43  E.  3.  36.  a.  accord.{b) 

And  altho  the  constable  be  well  assured  after  the  arrest  by  him 
made,  that  A.  was  not  the  person  that  did  it,  yet  he  may  not  by  the 
law  discharge  him,  but  must  bring  him  before  a  justice,  who  may 
upon  due  circumstances  discharge,  bail,  or  commit  him,  as  he  sees 
cause  ;  but  the  constable,  if  he  discharges  him,  is  finable. 

But  if  the  constable  after  the  arrest  finds  certainly,  that  there  was 
no  felony  committed,  it  is  held  he  may  discharge  him  both  without 
danger  of  felony,  (which  is  true,)  and  without  any  danger  of  fine 
and  imprisonment,  13  H.  7.  Kelw.  34.  a.  b.  but  then  it  is  at  his  peril, 
if  in  truth  there  were  a  felony  committed,  and  the  party  be  guilty; 
sed  de  his  vide  infra,  Dalt.  cap.  106./?.  271.  accords. {c) 

If  A.  be  committed  for  petit  larceny,  and  so  it  -appears  by  the 
charge  of  his  Mitlirrms,  and  the  gaoler  lets  him  at  large,  this  is  a 
contempt,  for  which  he  shall  be  fined,  but  not  felony  in  the  gaoler; 
so  if  he  were  convicted  of  petit  larceny  before  the  escape.  Stamf. 
P.  C.  Lib.  I.  cap.  21.  p.  33.  b.  8.  E.  2.  Coron.  430. 

So  if  a  man  be  originally  committed  for  manslaughter /?er2/?yb;'/?^- 
niiim  or  se  defendendo,  or  were  convict  only  se  defendendo  ov  per 
infortunium,  and  afterwards  the  gaoler  suffers  him  voluntarily  to 
escape,  it  is  no  felony;  but  if  the  commitment  or  indictment  were 
for  manslaughter,  tho  in  truth  it  were  but  se  defendendo,  yet  prima 
facie  a  voluntary  escape  is  indictable  as  felony,  tho  in  eventu  it  may 
fall  out  otherwise;  de  quo  infra. 

If  A.  be  indicted  of  murder  for  the  death  of  B.  and  par- 
doned or  acquitted  within  the  year,  but  left  in  jail  till  the  [  593  ] 
year  be  elapsed,  upon  the  statute  of  3  H.  7.  cap.  1.  that  the 
wife  may  bring  her  appeal  if  she  pleases,  and  after  that  acquittal,  and 
within  the  year,  the  gaoler  suffers  him  voluntarily  to  escape,  it  is 

(a)  That  was  the  case  of  a  negligent  (not  a  voluntary)  escape,  and  for  that  reason 
could  not  be  felony,  tho  it  is  there  given  as  a  reason,  why  it  sliould  not  be  adjudged  an 
escape,  because  the  thief  was  not  taken  with  the  mainouvre,  nor  at  the  suit  of  the  pariy, 
nor  indicted  of  felony. 

(&)  This  case  is  plainly  the  same  with  44  Assiz.  12.  and  seems  to  be  the  case  of  a 
voluntary  escape;  it  does  not  report  any  resolution  of  the  court,  but  only  says,  that  the 
bailift's  who  let  the  thief  go,  altho  he  were  not  indicted,  were  charged  with  an  escape; 
and  a  qucore  is  added  at  the  end  of  the  case:  and  as  to  the  case  in  Dijer,  that  was  not 
the  case  of  the  person  arresting  letting  the  thief  go,  but  of  a  third  person's  rescuing  him, 
and  that  is  said  to  be  felony,  altho  he  was  not  indicted.     See  1  £.  316.  6. 

(c)  New  Edit.  p.  511. 


693  HISTORIA  PLACITORUM  CORONA. 

felony  prima  facie,  and  the  gaoler  may  be  indicted  for  it  as  felony; 
but  if  the  wife  brings  not  her  appeal  within  the  year,  or  bringing  her 
appeal «/?.  is  acquitted,  the  gaoler  ought  to  be  acquitted :  vide  infra, 
JHoivd.  Com.  476.  b. 

If  ^.  commits  felony,  and  being  convicted  prays  his  clergy  and 
the  court  take  time  to  advise  upon  it  till  another  sessions,  and  in  the 
mean  time  he  is  left  in  gaol,  as  he  ought  to  be,  and  the  gaoler  volun- 
tarily suffer  him  to  make  his  escape,  this  is  felony  in  the  gaoler,  for 
such  a  prisoner  stands  yet  under  a  conviction  of  felony,  and  there- 
fore is  not  by  law  bailable;  but  if  the  felon  be  retaken,  and  hath  his 
clergy,  the  felony  in  the  escape  is  purged,  and  the  gaoler  is  not 
indictable  after,  or  if  indicted  before  the  clergy  allowed,  he  is  to  be 
acquitted. 

If  ^.  be  indicted  of  felony,  and  hath  his  clergy,  but  is  continued 
for  six  months  in  custody  for  his  farther  correction,  according  to  the 
power  given  by  the  statute  of  IS  Eliz.  cap.  7.  and  the  gaoler  suffer 
him  to  escape  voluntarily,  it  is  a  misdemeanor  punishable  by  fine 
and  imprisonment,  but  no  felony. 

If  a  man  be  delivered  to  the  ordinary  as  a  clerk  convict  upon  his 
own  confession,  or  as  a  clerk  attaint,  in  which  cases  he  ought  not  to 
be  admitted  to  purgation,  and  the  ordinary  notwithstanding  admit 
him  to  his  purgation,  and  set  him  at  large,  this,  at  common  law,  had 
been  a  misdemeanor  fineable;  but  it  seems  it  had  not  been  felony  ill 
the  ordinary ;  for  in  those  times  there  was  a  pretension,  that  a  clerk 
was  not  within  the  temporal  jurisdiction;  but  the  law  concerning 
purgation  is  altered  since  by  the  statute  of  18  Eliz.  cap.  1.  and  other 
statutes;  de  quo  infra,  21  Jlssiz.  12.  9  E.  4.  28. 

Thus  far  what  shall  be  said  a  felony. 

11.  What  shall  be  said  to  be  a  having  in  custody. 

Every  man  is  bound  by  law  to  pursue  and  take  a  felon;  and  if  he 
makes  not  pursuit,  he  is  fineable. 

But  if  ./^.commits  a  felony  in  the  presence  of  B.  and  B. 
[  594]  never  takes  him,  nor  attempts  it,  this  is  not  felony  in  B.  for 
B.  had  him  not  in  his  custody. 

So  it  is  if  .^.  commits  a  felony,  and  B.  receives  him  knowing  him 
to  be  a  felon,  and  then  B.  voluntarily  suffers  him  to  depart,  tho  the 
receipt  makes  him  accessary  after,  yet  it  is  no  escape  by  B.  because 
he  never  arrested  him,  and  so  had  him  not  in  custody.    9  H.  4.  \.{d) 

If./?,  being  acquit  of  felony,  judgment  is  given,  that  he  shall  go 
free  paying  his  fees,  tho  the  gaoler  lets  him  go  before  fees  paid,  it  is 
not  felony,  for  by  that  judgment  he  is  no  longer  in  custody  as  a  felon. 
21  //.  7.  17. 

If  the  constable  arrest  a  man  for  felony,  and  bring  him  to  the 
gaol,  and  the  gaoler  refuse  to  receive  him,  yet  in  law  he  is  in  the 
custody  of  the  constable,  and  if  he  lets  him  go,  he  is  chargeable  in  an 
escape.   10  //.  4.  7.  a.  Escape  8. 

If  A.  have  a  franchise  to  Iiave  the  custody  of  felons  in  his  gaol  [for 

(«/)  24  6.  ' 


HISTORIA  PLACITORUM  CORONA.  594 

three  days,](e)  and  then  to  deliver  over  to  the  sheriff  or  county-gaol, 
and  after  the  three  days  he  offers  him  to  tlie  county-gaol,  and  the 
gaoler  do  not  receive  him,  he  yet  remains  a  prisoner  to  Jl.  and  if  he 
suffers  a  voluntary  escape,  it  is  felony,  27  Jis^iz.  27.  yet  in  both 
these  cases  the  gaoler  is  punishable  for  not  receiving  the  felon  by 
4  E.  3.  cap.  10. 

If  A.  arrest  /?.  of  felony,  and  deliver  him  to  the  constable  or  to 
the  vili,  and  they  receive  him,  Jl.  is  discharged  of  the  custody,  and 
the  escape  after  is  chargeable  upon  the  constable  or  vill,  and  if  the 
constable  or  vill  deliver  iiim  to  the  sheriff  or  his  gaoler,  and  he  re- 
ceive him,  the  constable  and  vill  are  discliarged  of  the  custody,  and 
the  sheriff  or  gaoler  is  chargeable  wuh  the  escape  after.  3  E.  3. 
Coron.  328.  337. 

As  touching  escapes  without  arrests,  they  belong  not  to  this  title  of 
voluntary  escapes;  sed  hsec  vide  infra  <§•  supra. 

If  A.  the  sheriff  of  B.  hath  a  felon  in  gaol,  and  then  C.  is  made 
sheriff,  till  the  prisoner  be  turned  over  by  indenture  to  the  new  sheriff, 
the  custody  of  him  remains  in  J2.  and  he  or  his  gaoler  is 
chargeable  for  a  negligent  escape,  and  his  gaoler  chargeable  [  595  ] 
for  a  voluntary  escape. 

If  the  bailiff  of  a  franchise,  that  hath  a  gaol,  hath  the  custody  of 
a  felon,  he  is  chargeable  for  his  escape,  and  not  the  sheriff  or  his 
goaler. 

III.  Who  shall  be  said  a  person  lawfully  having  the  custody  of  a 
felon:  this  hath  been  touched  in  the  former  section, but  now  shall  be 
farther  prosecuted. 

If  Ji.  a  meer  private  man  knows  B.  to  have  committed  a  felony, 
he  may  thereupon  arrest  him  of  felony,  and  he  is  lawfully  in  the  cus- 
tody of./?,  till  he  be  discharged  of  him  by  delivering  him  to  the  con- 
stable or  common  gaol ;  and  therefore  if  he  voluntarily  suffers  him 
to  escape  out  of  his  custody,  tho  he  were  no  officer,  nor  B.  indicted, 
it  is  felony  in  A. 

So  it  is,  if  a  felony  be  in  fact  committed,  and  A.  hath  a  probable 
cause  to  suspect  B.  and  accordingly  suspects  and  arrests  him,  B.  is 
lawfully  in  the  custody  of  .^.  for  suspicion  of  felony;  and  if  he  volun- 
tarily lets  him  escape,  it  is  felony  in  A.  in  eventit,  viz.  if  B.  proves 
really  guilty  of  the  felony. 

And  accordingly  if  A.  deliver  the  party  so  arrested  to  the  con- 
stable's custody,  he  is  lawfully  in  his  custody,  and  if  he  suffer  the 
escape  voluntarily,  it  is  felony  in  eventu.  44  Assiz.  12. 

If  a  justice  of  peace  make  a  Mittimus  to  the  gaoler  for  felony 
with  an  unapt  conclusion,  as  ////  the  justice  give  order  for  his 
delivery,  whereas  it  should  be  till  he  be  delivered  by  due  course  of 
law,  tho  this  warrant  be  not  formal,  yet  the  felon  is  lawfully  in  his 
custody,  and  if  he  let  him  voluntarily  escape,  it  is  felony,  for  he  is 
sufficiently  ascertained  of  the  crime  with  which  he  is  charged. 

(e)  These  words  are  not  in  the  original  MS.  but  yet  are  plainly  supposed  in  the  argu- 
ment, and  are  mentioned  in  the  case  here  quoted  by  our  author,  viz.  27  Assiz.  27. 


595  HISTORIA  PLACITORUM  CORON^E. 

And  it  seems  to  me,  if  the  Mittimus  be  general  and  contain  no 
certain  cause,  the  the  gaoler  is  not  bound  to  receive  him  upon  such 
a  Mittimus,  yet  if  he  be  acquainted  what  the  crime  is  for  which  he 
is  committed,  if  he  suffer  him  voluntarily  to  escape,  it  is  felony. 

For  if  a  private  person  or  a  constable  arrests  a  man  for  felony,  and 
carry  him  to  the  common  gaol,  (as  he  may  do  by  law,  IS  E.  A.  9. 
and  the  gaoler  is  bound  to  receive  him  by  the  statute (/)  of 
r  596  ]  4  E.  3.  cap.  10.  if  the  constable  or  person  that  delivers  him, 
acquaints  the  gaoler  it  is  for  felony,  it  is  at  the  peril  of  the 
gaoler  if  he  lets  him  escape,  and  yet  there  is  no  Mittimus  in  that 
case,  but  a  notice  ore  tenus. 

The  stocks  is  the  prison  of  the  constable,  and  so  long  as  he  is  in 
the  stocks  he  is  in  the  constable's  custody,  and  therefore  if  the  con- 
stable wilfully  let  a  felon  escape  out  of  the  stocks,  and  go  at  large, 
it  is  felony  in  the  constable,  unless  it  be  to  bring  him  to  a  justice,  or 
to  a  safer  or  more  convenient  custody. 

IV.  What  shall  be  said  a  voluntary  escape  of  a  felon  in  custody, 
for  it  must  be  voluntary  escape  to  make  felony. 

If  the  prisoner  be  rescued,  or  rescue  himself  against  the  will  of 
him  that  hath  him  in  custody,  this  is  no  voluntary  escape,  nor  is  the 
gaoler,  &c.  punishable  for  the  same. 

If  the  prison  be  fired,  and  the  gaoler  lets  out  the  prisoners,  there 
being  no  other  means  to  save  their  lives,  and  uses  the  best  means  he 
can  by  his  officers  and  irons  to  keep  them  safe,  and  this  without 
fraud,  or  if  enemies  force  him  to  open  the  prison  doors,  and  he  doth 
it  to  save  his  life,  it  excuseth  from  felony. 

And  if  it  be  done  by  rebels,  tho  this  excuse  not  the  gaoler  or 
sheriff  in  civil  actions,  but  he  is  liable  to  an  action  of  debt,  or  upon 
the  case  for  the  escape,  because  the  sheriff  hath  his  remedy  over,  yet 
it  excuseth  the  gaoler  from  felony,  and  also  from  a  fine,  if  it  be  vis 
major,  quam  cui  resisti  potest. 

If  a  justice  of  peace  bail  a  person  not  bailable  by  law,  it  ex- 
cuseth the  gaoler,  and  it  is  not  felony  in  the  justice,  but  a  negligent 
escape,  for  which  he  is  fineable  at  common  law,  25  E.  3,  39. ,(^) 
and  by  the  justices  of  gaol-delivery  by  the  statute  of  1  <§-  2  P.  fy  M. 
cap.  13. 

And  the  like  in  case  of  a  sheriff,  under-sheriff,  constable,  bailiff 
of  a  liberty  bailing  one  that  is  not  by  law  bailable,  it  is  not  a  volun- 
tary escape,  at  least  unless  done  by  design  to  deliver  the  prisoner 
for  ever,  but  it  is  a  negligent  escape  punishable  at  common 
[597  ]  law,  or  according  to  the  statute  of  3  E.  1.  cap.  15.  by  loss  of 
office,  fine,  and  three  years  imprisonment. 

And  therefore  I  think,  that  if  a  justice  of  peace  bail  a  person,  that 
.confesseth  a  felony  before  him,  it  is  no  voluntary  escape,  but  fineable 

(/)  This  statute  obliges  the  gaoler  to  receive  felons  by  the  delivery  of  the  constables 
or  townships,  but  says  nothing  as  to  the  delivery  by  private  persons. 

{<r)  In  the  last  edition  of  the  year-books,  which  is  in  this  place  mispag-ed,  it  is 
25  E.  3.  82.  a. 


HISTORIA  PLACITORUM  CORONA.  597 

as  above,  for  it  is  error  scientise,  2  R.  3.  10.  contrary  to  the  opinion 
of  Crompf.  39.  a.  Dull.  p.  276. (A) 

If  a  gaoler  voluntarily  licence  a  felon  to  wander  out  of  the  bounds 
of  the  prison  and  to  return  again,  if  the  prisoner  returns  again  to  the 
gaol  before  the  gaoler  be  indicted,  so  as  he  be  iii  custody,  it  is  held 
by  some  this  will  not  excuse  a  voluntary  escape  as  to  the  point  of 
felony,  but  certain  it  is  that  it  is  punishable  as  a  misdemeanor,  and 
if  he  had  never  returned,  it  had  been  such  an  escape,  as  would  have 
been  felony,  tho  perchance  the  licence  were  special  to  go  out  and 
come  in  at  night.  22  E.  3.  Coron.  242.  8  E.  2.  Coron.  431.  because 
he  cannot  apportion  his  own  wrong  and  breach  of  duty. 
•   V.  In  whom  the  voluntarv  escape  shall  be. 

In  all  civil  causes  the  shernf  is  to  be  responsible,  or  the  gaoler  at 
election,  as  if  the  gaoler,  or  bailiff  of  a  sheriff  suffer  either  voluntarily 
or  negligently  an  escape  of  a  person  imprisoned  for  debt,  the  sheriff 
is  chargeable  with  an  action  upon  the  escape,  for  the  gaoler  or  bailiff 
is  the  sheriff's  officer  or  minister,  and  gives  him  security.  14  E,  3. 
cap.  10.  19  i/.  7.  cap.  10. 

But  if  the  gaoler  being  placed  there  by  the  sheriff  voluntarily 
suffer  a  felon  in  liis  custody  to  escape,  this,  in  os  much  as  it  reacheth 
to  life,  is  felony  only  in  the  gaoler  that  was  immediately  trusted  with 
the  custody,  not  in  the  sheriff. 

But  whether  the  escape  was  voluntary  or  negligent,  yet  the  sheriff 
may  be  indicted  for  it  so  as  to  subject  him  to  a  great  fine  and  impri- 
sonment for  the  offense  of  his  gaoler,  tho  not  fo  make  him  guilty  of 
felony.  Dalt.  cap.  106.;?.  213.[i)  Doctor  and  Sludenl  A2.{k) 

For  the  escape  must  be  voluntarily  permitted  in  him  that  permitted 
it,  which  could  not.  be  in  the  high  sheriff,  tho  it  were  such  in  the 
gaoler,  for  he  was  not  privy  to  it,  and  therefore  could  not 
do  Wfelonicl,  but  it  was  a  negligent  escape  in  him  in  trusting  [  598  T 
such  a  person  with  the  custody  of  his  prisoners,  that  would 
be  false  to  his  trust,  and  therefore  the  sheriff  shall  pay,  but  not  cor- 
porally suffer,  for  the  miscarriage  of  his  gaoler. 

But  if  the  gaoler  were  a  gaoler  in  fee,  as  antiently  constables  of 
castles  were,  the  sheriff  should  not  answer  in  any  kind  for  the  default 
of  such  gaoler  or  constable:  but  now  by  the  statutes  of  14  E.  3.  cap. 
10.  and  19  ^.  Leap.  10.  gaols  of  counties  are  rejoined  to  the  counties. 

But  for  escapes  committed  by  gaolers  of  gaols  in  particular  fran- 
chises, as  the  Gale-house  at  Westminster  belonging  to  the  dean  and 
chapter  of  Westminster.,  escapes  there  permitted  concern  not  the 
sheriff,  but  the  particular  gaoler  and  lord  of  the  franchise. 

VI.  How  and  in  what  manner,  and  before  whom  felonious  escapes 
shall  be  determined,  tried  and  adjudged. 

It  is  to  be  known,  that  I  may  say  it  once  for  all,  altho  the  felony 
for  breaking  of  prison  may  be  heard,  tried  and  determined  before  the 
felony,  for  which  he  was  committed,  as  shall  be  said;  yet  in  case  of 
a  felony  for  the  wilful  escape  or  rescue,  of  a  person  committed  to 

Qi)  New  Edit.  p.  512.  (i)  New  Edit.  p.  509.  {k)  Dialog.  2.  cap.  42. 


598  HISTORIA  PLACITORUM  CORONA. 

prison  for  felony,  tho  the  party  that  voluntarily  permits  such  iescape, 
or  rescues  the  prisoner,  may  be  indicted  for  these  offenses  as  felonies 
before  the  principal  felony  in  him  that  escapes  or  is  rescued  be  tried, 
yet  he  shall  not  be  arraigned  or  put  upon  his  trial,  till  the  principal  be 
convicted  or  attainted;  and  the  reason  is,  because  possibly  the  person 
escaping  may  be  found  not  guilty,  or  if  guilty,  yet  of  such  a  fact  as 
is  not  capital ;  as  of  petit  larciny,  se  dcfendendo,  per  infortunium^ 
in  which  case  the  rescuer  or  officer  ought  to  be  discharged:  nay,  if 
the  principal  person  be  only  convict  and  not  attaint,  but  hath  his 
clergy,  I  think  the  gaoler  or  rescuer  shall  never  be  put  to  answer  to 
the  escape  or  rescue,  but  be  discharged,  as  the  accessary,  where  the 
principal  hath  his  clergy, shall  be  discharged  thereby;  for  the  rescuer 
and  officer,  that  permits  the  escape,  are%  kind  of  accessaries.[l] 

But  in  these  cases  the  gaoler  or  rescuer  may  be  fined  and 
[  599  '\  imprisoned  for  their  misdemeanor,  but  shall  not  be  charged 
with  felony,  where  the  principal  is  discharged.  2  Co.  Instit. 
p.  592. 

Again,  it  is  to  be  remembered,  that  there  is  a  voluntary  escape  be- 
fore indictment,  and  a  voluntary  escape  of  a  party  indicted  of  felony. 

1.  If  the  party  tliat  escapes  were  not  indicted  at  the  time  of  the 
escape  voluntarily  permitted,  the  indictment  of  the  gaoler  (and  so  in 
case  of  a  rescue)  ought  to  surmise,  that  de  facto  a  felony  was  com- 
mitted, and  that  the  person  escaping  was  imprisoned  for  that  felony 
or  suspicion  of  it. 

And  I  need  not  say  this  must  be  proved  upon  the  evidence  against 
the  gaoler,  for,  as  I  said  before,  the  gaoler  cannot  be  arraigned  till 
the  principal  be  attainted  by  verdict,  confession,  or  outlawry,  and  the 
record  of  such  attainder  must  be  shewed  or  proved. 

2.  But  if  the  party  that  escaped  were  indicted,  and  so  taken  by 
Capias^  and  then  escape,  tho,  as  I  said  before,  the  gaoler  or  rescuer 
cannot  be  arraigned  and  tried  till  the  principal  be  attainted,  yet  the 
indictment  for  the  escape  or  rescue  need  not  surmise  a  felony  done, 
but  only  recite  the  substance  of  the  indictment  against  him  that 
escapes.   1  E.  3.  16.  6.  2  E.  3.  Coron.  158. 

And  the  like  law  is  in  case  of  felony  for  breach  of  prison.  2  Co. 
Instit.  p.  590. 

Again  it  is  to  be  known,  that  as  to  the  voluntary  suffering  of  an 
escape  or  rescuing  of  a  felon,  tho  the  felony  be  not  within  clergy,  yet 
the  escape  or  rescue  are  within  clergy,  and  tho  the  prisoner  were  in- 
dicted or  attainted  of  several  felonies,  yet  the  escape  or  rescue  of  such 
a  prisoner  makes  but  one  felony,  and  he  shall  be  indicted  but  of  one 
escape;  but  if  Ji.  and  B.  be  indicted  of  one  felony,  and  the  gaoler 
voluntarily  suffer  both  to  escape,  the  gaoler  may  be  indicted  severally 
for  both. 

The  means  of  bringing  an  officer  to  judgment  cannot  be  barely  by 
the  calling  of  the  record  of  the  prisoners  over,  as  is  usually  done  in 

[1]  See  note,  post  p.  605. 


HISTORIA  PLACITORUM  CORONA.  599 

the  king's  bench,  because  tho  this  may  be  a  sufficient  cause  to  con- 
vict of  a  negligent  escape,  yet  it  cannot  appear  thereby  that  it  is  vo- 
luntary; the  marshal  or  gaoler  may  be  fined  upon  a  record 
thereof  made,  but  he  cannot  be  convict  of  a  felony,  39  H.  G.  [  600  ] 
33.  but  there  must  be  an  indictment  or  presentment  of  the 
felonious  and  voluntary  escape. 

And  tho  by  the  statute  of  Westm.  1.  cap.  3.(/)  amercements  upon 
the  country  for  the  escapes  of  felons  cannot  be  set  but  by  the  justices 
in  Eyre.,  or  by  the  king's  bench,  21  Jlssiz.  12.  27  Assiz.  27,  or,  as  it 
seems,  by  justices  of  general  oyer  and  terminer;  yet  the  hearing  and 
determining  of  escapes  is  at  this  day  within  the  jurisdiction  of  justices 
of  peace,  or  any  other  justices,  by  the  statutes  of  1  R.  3.  cap.  3.  31 
E.  3.  cap.  14. 

And  thus  far  concerning  voluntary  escapes  of  felons,  where  it  is 
felony  and  where  not. 

In  the  next  chapter  I  shall  say  something  concerning  negligent 
escapes,  tho  this  hath  been  before,  cap.  50.  in  part  handled. 


CHAPTER  LII. 

TOUCHING    NEGLIGENT    ESCAPES. 

Negligent  escapes  of  felons  are  not  felony,  but  punishable  by  fine 
upon  the  parties  that  suffer  them. 

These  negligent  escapes  are  of  two  kinds,  1.  By  an  officer  or  some 
particular  person  or  persons,  that  hath  a  felon  in  custody,  2.  Or  by 
vills  or  townships,  whether  the  felon  be  taken  and  in  custody,  or  not 
taken. 

I.  First  as  to  negligent  escapes  by  officers  or  particular  persons 
these  things  are  considerable. 

1.  What  shall  be  said  a  negligent  escape.  2.  What  the  conviction 
of  such  negligent  escape.  3.  What  the  punishment  of  it,  and  by 
whom. 

As  to  the  first  of  these,  what  shall  be  said  a  negligent 
escape  hath  been  partly  before  described,  only  some  things   [  601  ] 
I  shall  add. 

If  a  prisoner  for  felony  break  the  gaol,  this  seems  to  be  a  negligent 
escape,  because  there  wanted  either  that  due  strength  in  the  gaol  that 
should  have  secured  him,  or  that  due  vigilance  in  the  gaoler  or  his 
officers  to  have  prevented  it,  and  therefore  it  is  by  law  lawful  for  the 
gaoler  to  hamper  them  with  irons  to  prevent  their  escape,(a)  and  if 

(/)2  Co.  Instit.  165. 

(o)  Arid  therefore  this  liberty  can  only  be  intended,  where  the  officer  has  just  reason 
to  fear  an  escape,  as  where  the  prisoner  is  unruly  or  makes  any  attempt  to  that  purpose; 
bat  otherwise,  notwithstanding  the  common  practice  of  g-aolers,  it  seems  altogether  un- 
warrantable, and  contrary  to  the  mildness  and  humanity  of  the  laws  of  Ev^land,  by 
which  gaolers  are  forbid  to  put  their  prisoners  to  any  pain  or  torment;  see  Co.  P.  C. 


601  HISTORIA  PLACITORUM  CORONiE. 

this  should  not  be  construed  a  negligent  escape,  gaolers  would  be 
careless  either  to  secure  their  prisoners,  or  to  retake  them  that  escape, 
if  he  should  in  such  a  case  be  exempt  from  pecuniary  punishment; 
and  we  see  by  daily  experience  in  civil  cases  of  men  in  execution  or 
arrested  for  debt,  if  they  break  prison  the  sheriff  is  changeable. 

But  if  a  private  person  arrest  a  felon,  and  he  escapes  by  force  from 
him  without  any  default  in  him,  tho  the  township  shall  be  amerced, 
as  shall  be  said,  yet  it  seems  it  excuseth  the  party,  for  he  being  a  pri- 
vate person  cannot  raise  power  to  take  or  detain  a  fejon. 

But  if  a  sheriff,  bailiff,  constable,  or  other  ofiicer  hath  the  custody 
of  a  prisoner  bringing  him  to  the  gaol,  it  seems  that  a  simple  escape 
by  the  rescue  of  the  prisoner  himself  doth  not  excuse  him  a  toto, 
though  it  mayff  ^a«/o,  because  he  may  take  sufficient  strength  to  his 
assistance;  but  if  he  be  rescued  before  he  be  brought  to  gaol,  qtissre, 
whether  it  be  not  an  excuse  of  an  escape,  as  in  case  where  a  man  is 
arrested  upon  a  mesne  process,  and  in  carrying  to  gaol  be  rescued,  the 
return  of  the  rescue  excuseth  the  sheriff,  39  Eliz.  C.  B.  Croke,n.22. 
Conyer^s  case;  but  it  is  no  excuse  if  he  be  taken  in  execution 
\_  602  ~\  and  rescued,  for  there  the  sheriff  shall  be  answerable  not- 
withstanding the  rescue,  but  it  seems  the  rescue  is  no  excuse 
in  case  of  felony.     3  E.  3.  Coron.  328.  337.(6) 

And  upon  the  same  reason  it  is,  that  if  a  felon  be  attaint  and  be 
carried  to  execution,  and  be  rescued  from  the  sheriff,  the  sheriff  is 
punishable  notwithstanding  the  rescue,  for  there  is  judgment  given, 
and  the  sheriff  should  have  taken  sufficient  power  with  him,  and 
therefore  in  that  case  the  township  is  not  fineable:  vide  21  ^ssiz.  54. 

If  a  prisoner  for  felony  be  in  gaol  and  escape,  and  the  gaoler  pur- 
sue after  him,  he  may  take  him  seven  years  after,  tho  he  were  out  of 
his  view,  13  ^.  4.  9.  a.  14  H.  7. 1.  a.  but  that  will  not  excuse  the 
gaoler  from  a  negligent  escape,  tho  it  may  excuse  a  lanto;  for  if  the 
gaoler  hath  once  lost  the  view  of  his  prisoner,  tho  he  take  him  after, 
it  is  an  escape,  but  if  he  retake  him'  upon  a  fresh  pursuit,  and  hath 
still  the  view  of  him,  it  is  no  escape,  nor  punishable.  8  E.  2.  Coron. 
400.  22  E.  3.  Coro}i.  236.  M.  28.  E.  3.  RoL  32.  Bex  Hertf.  Casus 
Jihbatis  Sancti  Jllbani.  M.  45.  E.  3.  Rot.  17.  in  dors.  Rex  Essex. 

But  if  a  man  be  arrested  for  felony,  and  in  bringing  to  gaol  by  this 
sheriff's  baililT  or  constable  he  makes  his  escape,  and  they  follow  him 
and  keep  the  view  of  him,  but  cannot  take  him  without  killing  him, 
whereby  he  is  kild  in  the  pursuit,  yet  the  sheriff  or  constable,  or  town- 
ship, that  let  him  escape,  shall  be  fined  for  the  escape,  because  tho 
the  party  be  kild  in  the  fresh  pursuit,  he  cannot  now  be  brought  to 

p.  34  <.Sf  35.  Custodes  ganlnrum  pmnam  sibi  cnminissis  non  auireavt,  nee  eos  torqnennt  vel 
redimant^  sed  ornni  savitid  remold  piHatrque  adhibild  judicia  debite  exequantur,  Flet. 
Lib.  I.  cap.  26.  and  llic  Mirror  of  Justices,  cap.  5.  §  1.  n.  54.  says,  It  is  an  abuse  that 
prisoners  should  be  charged  with  irons,  or  put  to  any  pain  before  they  be  attainted  of  felo- 
ny;  and  lord  Coke  in  liis  comment  on  tlic  statute  of  Westm.  2.  cap.  ll.  is  express,  that  by 
the  common  law  it  might  not  be  dune.    2  Instit.  381. 

{b)  'I'licse  cases,  as  also  Couier^  case  licrc  mentiond,  prove  nothing  particularly  as  to 
a  rescue,  but  only  in  general,  that  a  shcritF  shall  be  liable  in  case  of  an  escape. 


HISTORIA  PLACITORUM  CORONA.  602 

judgment,  and  yet  by  his  flight,  if  presented  by  the  coroner,  he  for- 
feits his  goods.  3  E.  3.  Coron.  328  and  346. 

If  a  felon  escape  out  of  the  gaol  by  negligence,  tho  the  gaoler  be 
fined  for  it,  he  may  retake  the  felon  at  any  time  after,  for  the  felon 
shall  not  take  the  advantage  of  his  own  wrong,  or  the  gaoler's  pun- 
ishment, but  his  retaking  shall  not  discharge  the  gaoler's  fine,  and 
so  is  the  book  to  be  intended.    13  E.  4.  9.  a. 

2.  Touching  the  conviction  of  a  negligent  escape. 

The  proper  way  of  conviction  is  by  presentment  and  trial  [  603  ] 
thereupon. 

Yet  where  the  prisoners  be  of  record  in  a  court,  if  the  gaoler  being 
called  cannot  give  an  account  where  a  prisoner  is,  this  is  a  conviction 
of  an  escape,  but  seems  not  to  be  presently  a  conviction  of  a  volun- 
tary escape,  unless  the  gaoler  confess  it:  vide  27  H.  6.  7.  39  H.  6.  33. 
so  in  some  cases  the  coroner's  roll  is  a  conviction  of  an  escape,  vide 
3  E.  3.  Coron.  352.  so  if  the  dozeners  present  a  felon  taken  and  de- 
livered to  the  sheriff  by  the  vill,  but  shew  not  what  sheriff.  3  E.  3. 
Coron.  345.  (c) 

Where  an  officer  is  to  be  charged  either  with  a  voluntary  or  neg- 
ligent escape,  the  bare  presentment  of  the  escape  by  the  grand  inquest 
or  the  dozeners  in  Eyre,  or  upon  a  commission  of  Oyer  and  Terminer, 
or  in  the  king's  bench,  is  not  alone  sufficient  to  convict  the  officer, 
because  upon  his  conviction,  tho  but  of  a  negligent  escape,  he  is  to 
be  fined. 

But  if  the  dozeners  in  Eyre  or  in  the  king's  bench  present  the  es- 
cape of  a  felon,  whereby  the  vill  is  to  be  amerced,  because  this  is  but 
an  amercement,  and  the  justices  may  [not  in  this  case(f/)]  set  a  fine 
but  an  amercement,  de  minimis  non  curat  /eo*,  and  therefore  the  pre- 
sentment is  not  traversable:  vide  3  E.  3.  Coron.  291.  <^'  ibidem  3  E.  3. 
Coron.  328.  346.  Stamf.  P.  C.  Lib.  I.  cap.  33.  fol.  35.  b. 

An  escape  is  presentable  in  a  leet,  but  they  cannot  set  a  common 
fine  or  amercement  there,  but  it  ought  to  be  sent  to  the  next  Eyre, 
4'C.  or  may  be  removed  into  the  king's  bench  by  Certiorari,  and 
there  the  common  fine  or  amercement  set;  and  this  by  the  statute  of 
Westm.  1.  cap.  3. 

3.  As  to  the  punishment  of  a  negligent  escape  by  an  officer  or 
other  that  hath  the  felon  in  custody,  it  is  by  fine  and  imprison- 
ment. 

If  the  felon  be  attainted,  it  is  said  that  the  fine  is  to  be  an  [  604  ] 
hundred  pounds,  and  if  he  be  only  indicted,  then  an  hun- 
dred shillings,  Stamf.  P.  C.  p.  35.  but  the  fine  in  truth  is  more  or 
less  according  to  the  quality  of  the  offense,  and  sometimes  of  the 

(c)  The  words  of  the  book  are,  "  When  the  dozen  present,  that  a  felon  is  taken  for 
felony  and  delivered  to  the  sheriff,  they  adjudge  it  for  an  escape  in  Eyre,  if  they  do  not 
say  to  what  sheriff  by  name,  for  a  man  may  inquire  his  rolls  to  see  whence  the  prisoner 
comes,  ^c.  and  if  they  do  not  find  in  the  sheriff's  roll,  that  he  was  charged  with  him,  or 
if  they  do  not  find  how  he  got  out  of  his  custody  according  to  the  law  of  the  land,  it 
shall  be  adjudged  an  escape  in  the  sheriff. 

(<f )  Tiiese  words  are  wanting  in  the  MS,  but  the  sense  of  the  place  seems  plainly  to 
require  them. 


604  HISTORIA  PLACITORUM  CORONA. 

offender:    vide  3  E.  3.  Coron.  370.  a  bishop  fined  one  hundred 
pounds  for  an  escape. 

Communia  Scaccario,  M.  36  E.  3.  n.  5.  The  constable  of  a  castle 
under  the  duke  of  /,«nc«5/er  permitted  a  negligent  escape:  It  was 
ruled,  1.  That  in  default  of  the  constable  the  duke  of  LancasteVy 
that  put  him  in,  should  be  fined,  2.  That  tho  the  duke  were  dead, 
yet  his  executors  should  be  fiued,(e)  and  they  were  fined  five  pounds 
for  negligent  escape. 

II.  I  come  to  those  fines,  that  are  for  escapes  of  felons  either  before 
or  sometimes  after  arrest. 

And  this  is  that  which  is  set  upon  vills,  towns,  cities,  and  some- 
times upon  hundreds  and  counties,  and  is  usually  called  escapium, 
and  those  that  have  franchises  to  be  quit  de  murdro,  latrocinio, 
escapiis,  are  intended  of  those  common  fines  set  upon  vills  or  hun- 
dreds for  those  offenses,  and  then  he  that  hath  such  a  liberty  granted 
by  the  king  to  be  quit  de  escapiis,  hath  a  discharge  for  the  rate  or 
portion  of  such  a  common  fine  or  amercement  that  comes  to  his 
share;  and  this  franchise  or  liberty  generally  granted  to  be  quit  de 
escapiis  extends  not  to  voluntary  escapes  by  officers  or  others,  but  as 
I  said  to  the  rate  or  portion  chargeable  upon  them  by  such  common 
fine  or  amercement  for  negligent  escapes. 

If  a  murder,  manslaughter,  or  killing  of  a  man  se  defendendo  be 
committed  in  a  vill  not  inclosed  in  the  day-time,  and  the  murderer, 
4'C.  be  not  taken,  the  vill  shall  be  amerced,  altho  it  be  done  after  sun- 
set, before  day-light  be  gone.  22  E.  3.  Coron.  238.  3  E.  3.  Cordon. 
293,  302.  3  H.  7.  cap.  1. 

And  if  the  murder  be  committed  in  a  town  inclosed  in  the  day  or 
night,  and  the  murderer  or  manslayer  escape,  the  town  shall  be 
amerced,  because  by  the  statute  of  Winchester,  they  ought  to  keep 
their  gates  shut  from  sun-set  to  sun-rising.  3  E.  3.  Coron.  299. 
3  H.  7.  cap.  1. 

If  a  felony  be  committed  in  a  vill,  and  they  take  the 
r  605  3  felon,  and  commit  him  to  four  men  to  carry  him  to  gaol, 
and  they  suffer  him  to  escape,  the  vill  shall  be  amerced. 
3  E.  3.  Coron.  34G. 

If  a  felony  be  committed  in  a  vill,  and  the  felon  taken  by  them 
of  the  vill,  and  he  escape  from  them  to  the  church  of  the  same 
vill,  and  from  thence  before  abjuration  he  escapes  again,  the  vill 
shall  be  amerced  for  two  escapes  at  common  law,  for  they  should 
have  kept  him  in  the  church  till  abjuration,  «§-c.   8  E.  2.  Coron.  422. 

But  if  a  person  attaint,  as  they  are  carrying  him  to  execution, 
escape  to  a  church,  and  from  thence  make  an  escape,  the  vill  were 
notamerceable,  because  he  could  not  abjure  being  attaint, and  the-ro- 
fore  the  vill  were  not  bound  to  watch  him,  27  Jlssiz.  54.  vide  Rot. 
Pari.  45  E.  3.  n.  25.  50  E.  3.  n.  183.  But  now  abjuration  and 
sanctuary  are  ousted,(/)  and  with  it  much  of  this  old  learning  of 
escapes  is  antiquated. 

(e)  See  2  Co.  Instil.  382.  (/)  By  21  Jac.  cap.  28.J.  7. 


HISTORIA  PLACITORUM  CORONJii.  605 

If  a  prisoner  for  suspicion  of  felony  be  bronglit  to  the  hundred 
court,  and  the  court  grant  him  Hberty  to  seek  his  voucher  or  war- 
rant, and  he  escape,  the  hundred  shall  be  amerced.  3  E.  3.  Cornn. 
316.  and  so  it  is  if  a  manslaughter  be  committed  out  of  any  vill. 
Stnmf.  P.  C.  34.  a. 

If  the  vill  answers  not  the  amercement  for  an  escape,  the  hun- 
dred shall  be  distrained^  and  if  the  hundred  answer  not,  the 
county  shall  be  charged  therewith  and  distrained.  Stamf.  P.  C. 
p.  34.  b. 

And  thus  far  touching  escapes  both  voluntary  and  negligent.[l] 

[1]  An  escape  is,  where  one  that  is  arrested  gaineth  his  liberty  before  he  is  delivered 
by  the  course  of  law.   Terms  de  la  Ley. 

Escapes  are  of  three  kinds.  1.  By  a  person  who  has  the  offender  in  his  custody;  this 
is  properly  called  an  escape.  2.  Caused  by  a  stranger ;  this  is  commonly  called  a  res- 
cue. 3.  By  the  party  himself;  either  without  force,  which  is  simply  an  escape,  or  with 
force,  %vhich  is  prison-breaking. 

Escape  by  the  party  himself. — As  all  persons  are  bound  to  submit  themselves  to  the 
judgment  of  the  law,  and  to  be  ready  to  be  justified  by  It,  whoever  in  any  case  refuses 
to  undergo  that  imprisonment  which  the  law  thinks  fit  to  put  upon  him,  and  frees  him- 
self from  it  by  any  artifice  before  such  time  as  he  is  delivered  by  due  course  of  law, 
is  guilty  of  a  high  contempt,  punishable  with  fine  and  imprisonment.  2  Hawk.  c.  17. 
s.  5.  4  Blac.  Com.  129. 

Escape  suffered  by  a  private  person. — It  seems  to  be  a  good  general  rule,  that  wher- 
ever any  person  hath  another  lawfully  in  his  custody,  whether  upon  an  arrest  made  by 
himself  or  another,  he  is  guilty  of  an  escape,  if  he  suffer  him  to  go  at  large  before  he 
hath  discharged  himself  of  him,  by  delivering  over  to  some  other  who  by  law  ought  to 
have  the  custody  of  liim.     2  Hawk.  c.  20.  s.  1. 

And  the  law  is  generally  the  same,  in  relation  to  escapes  suffered  by  private  persons, 
as  by  officers.  Id. 

Escape  suffered  by  an  officer. — Whenever  an  officer,  having  a  party  lawfully  in  his 
custody  on  a  charge  of  felony,  voluntarily  permits  him  to  escape,  the  officer  is  involved 
in  the  legal  guilt  of  the  crime  charged  on  his  prisoner.    2  Hawk.  c.  19.  s.  40. 

Where  he  negligently  permits  a  prisoner  to  escape,  he  is  guilty  of  a  misdemeanor,  and 
he  is  guilty  in  this  degree  if  a  prisoner  in  his  charge  commits  suicide.  Dalt.  J.  c.  159. 

It  is  laid  down,  that  whoever,  de  facto,  occupies  the  office  of  a  gaoler,  is  liable  to  an- 
swer for  a  negligent  escape,  and  that  it  is  no  way  material  whether  his  title  to  the  office 
be  legal  or  not.    2  Hawk.  c.  19.  s.  28. 

It  appears  to  have  been  holden,  that  it  is  an  escape  in  the  constable  to  discharge  a 
person  committed  to  his  custody  by  a  watchman,  as  a  loose  and  disorderly  woman,  and 
a  street-walker,  although  no  positive  charge  was  made.    Rex  v.  Bootie,  2  Burr.  864. 

What  is  an  escape,  and  what  a  negligent  or  voluntary  one. — In  order  to  make  an 
escape  there  must  be  an  actual  arrest ;  and  therefore  if  an  officer,  having  a  warrant  to 
arrest  a  man,  see  him  shut  up  in  a  house,  and  challenge  him  as  his  prisoner,  but  never 
actually  have  him  in  his  custody,  and  the  party  get  free,  the  officer  cannot  be  charged 
with  an  escape.    2  Hawk.  c.  19.  s.  1. 

The  arrest  must  be  also  justifiable  ;  for,  if  it  be  either  for  a  supposed  crime,  where  no 
Buch  crime  was  committed,  and  the  party  neither  indicted  nor  appealed,  or  for  such  a 
slight  suspicion  of  an  actual  crime,  and  liy  such  an  irregular  mittimus  as  will  neither 
justify  the  arrest  nor  imprisonment,  the  officer  is  not  guilty  of  an  escape,  by  suffering 
the  prisoner  to  go  at  large.    2  Hawk.  c.  19.  s.  2. 

And  as  the  imprisonment  must  be  justifiable,  so  it  must  be  also  for  a  criminal  offence 
Jd.  s.  3. 

The  imprisonment  must  also  be  continuing  at  the  time  of  the  escape;  and  its  continu- 
ance must  be  grounded  on  that  satisfaction  which  tlie  public  justice  demands  for  the 
crime  committed.  So  that  if  a  prisoner  lie  acquitted,  and  detained  only  for  his  fees,  it 
will  not  be  criminal  to  suffer  him  to  escape,  though  the  judgment  were  that  he  be  dis- 


605  HISTORIA  PLACITORUM  CORONA. 

charged  paying  his  fees;  .he  being  detained,  not  as  a  criminal,  but  only  as  a  debtor:  but 
if  a  person  convicted  of  a  crime  be  condemned  to  imprisonment  for  a  certain  time,  and 
also  ''  until  he  pays  his  fees,"  and  he  escape  after  such  time  has  elapsed,  without  paying 
them,  perhaps  such  escape  may  be  criminal,  for  it  was  part  of  the  punishment  that  the 
imprisonment  be  continued  till  the  fees  should  be  paid.  2  Hawk.  c.  19.  s.  4.  1  Russ. 
C.  c^  M.  531. 

Also,  it  is  an  escape  in  some  cases  to  suffer  a  prisoner  to  have  greater  liberty  than  by 
the  law  he  ought  to  have;  as  to  admit  a  person  to  bail  who  by  law  ought  not  to  be 
bailed,  but  be  kept  in  clos^  custody.    2  Hawk.  c.  19.  s.  5. 

So  if  a  gaoler  or  other  officer  shall  license  his  prisoner  to  go  abroad  for  a  time,  and  to 
come  again,  this  is  an  escape,  even  though  the  prisoner  return  again.    Dult.  c.  159. 

If  the  gaoler  so  closely  pursue  the  prisoner  who  flies  from  him,  that  he  retakes  him 
without  losing  sight  of  him,  the  law  looks  on  the  prisoner  so  far  in  his  power  all  the  time, 
as  not  to  adjudge  such  a  flight  to  amount  at  all  to  an  escape:  but  if  the  gaoler  once  lose 
sight  of  the  prisoner,  and  afterwards  retake  him,  he  seems  in  strictness  to  be  guilty  of  aa 
escape.    2  Hawk.  c.  19.  s.  6.  But  it  must  be  by  a  known  officer  of  the  law. 

T.  Hill,  a  yeoman  warden  of  the  tower,  and  Dod,  the  gentleman  gaoler  there,  were 
indicted  for  the  negligent  escape  of  Colonel  Parker,  committed  to  the  tower  for  high 
treason.  Lord  Lucas,  the  constable  of  the  tower,  had  committed  the  Colonel  to  the  care 
of  the  defendants,  to  be  kept  in  the  house  of  the  defendant.  Hill.  The  judges  present, 
(O.  B.  January,  1694,)  were  of  opinion,  that  the  defendants  were  not  such  officers  as 
the  law  took  notice  of,  and  therefore  could  not  be  guilty  of  a  negligent  escape.  It  was  • 
merely  a  breach  of  trust  to  Lord  Lucas,  their  master. 

Upon  the  same  principle,  S.  Stick,  a  warder  of  the  tower,  who  was  indicted  at  the 
same  session  for  the  negligent  escape  of  Lord  Clancarty,  was  acquitted.  Wherever  an 
officer,  who  hath  the  custody  of  a  prisoner,  charged  with  and  guilty  of  a  capital  offence, 
doth  knowingly  give  him  his  liberty,  with  an  intent  to  save  him  from  his  trial  or  execu- 
tion, tills  is  a  voluntary  escape.  2  Hawk.  c.  19.  s.  10.  A  negligent  escape  is,  when  the 
party  arrested  or  imprisoned  doth  escape  against  the  will  of  liim  that  arrested  or  impri- 
soned him,  and  is  not  freshly  pursued  and  taken  again  before  he  hath  lost  sight  of  him. 
Dalt.  c,  159.  If  a  constable  or  other  officer  shall  voluntarily  suffer  a  thief,  being  in  his 
custody,  to  go  into  water  to  drown  himself,  this  escape  is  felony  in  the  constable,  and 
drowning  is  felony  in  the  thief;  otherwise  if  tlie  thief  shall  suddenly,  without  the  agserit 
of  the  constable,  kill,  hang,  or  drown  'himself,  this  is  but  a  negligent  escape  in  the  con- " 
stable.     Id.  .  '_ 

If  an  officer  hath  arrested  a  man  by  virtue  of  a  warrant,  and  then  taketh  bis  promise 
that  he  will  come  again,  and  so  I^tteth  him  go,  the  officer  cannot,  after  arrest,  take  him 
again  by  force  of  his  former  warrant,  for  that  this  was  by  consent  of  the  officer.  But  if 
he  return,  and  put  himself  again  under  the  custody  of  the  officer,  it  seems  that  it  may  be 
properly  argued  that  the  officer  may  lawfully  detain  him,  and  bring  him  before  the  jus- 
tice, in  pursuance  of  the  warrant.     Dalt.  c.  169;  2  Hawk.  c.  13.  s.  9. 

But  if  the  party  arrested  had  escaped  in  his  own  wrong,  without  the  consent  of  the 
officer,  now,  upon  fresh  suit,  the  officer  may  take  him  again  and  again  so  often  as  he 
escapeth,  although  he  were  out  of  view,  or  that  he  shall  fly  into  another  town  or  county, 
and  bring  him  before  the  justice  upon  whose  warrant  he  was  first  arrested.  Dalt.  c.  169. 
p.  405.  And  it  is  said,  generally,  in  some  books,  that  an  officer  who  hath  negligently 
suffered  a  prisoner  to  escajie,  may  retake  him  wherever  he  finds  him,  without  mention- 
ing any  fresh  pursuit;  and  indeed  since  the  liberty  gained  by  the  prisoner  is  wholly 
owing  to  his  own  wrong,  there  seems  to  be  no  reason  he  should  ta^e  any  manner  of  ad- 
vantage from  it.     2  Hawk.  c.  19.  s.  12. 

And  wherever  a  person  is^Iawfully  arrested  for  any  cause,  and  afterwards  escapes,  and 
shelters  himself  in  a  house,  the  doors  inay  be  broken  open  to  take  him,  on  a  refusal  of 
admittance.  2  Hawk.  c.  14.  s.  9.  It  is  perhaps  the  better  opinion,  that  wherever  a  pri- 
soner, by  the  negligence  of  his  keeper,  gets  so  far  out  of  his  power  that  the  keeper  loses 
sight  of  him,  the  keeper  is  punishable  for  the  escape,  notwithstanding  he  took  him  im- 
mediately after;  and  it  is  clear  that  he  cannot  excuse  himself  from  an  escape  by  killing 
a  prisoner  in  the  pursuit,  though  he  could  not  possibly  retake  him;  but  must  in  such 
case  be  content  to  submit  to  such  punishment  as  his  negligence  shall  appear  to  deserve. 
2  Hawk.  c.  19.  s.  13. 

In  the  case  of  Ryland  v.  Lavender,  2  Binff.  G5;  9  Moore,  71.  S.  C.  the  defendant,  aa 
gaoler,  covenanted  with  the  sheriff,  among  other  things,  to  attend  the  quarter  sessions, 
and  to  remove  prisoners,  under  writs  of  habeas  corpus,  without  permitting  them  to 
escape.    The  defendant  being  engaged  at  the  quarter  sessions,  the  shcrifl",  upon  a  Writ 


HISTORIA  PLACITORUM  C0R0N7E.  605 

of  habeas  corpus  for  the  removal  of  a  prisoner,  directed  his  warrant  to  the  defendant,  and 
"  W.  W.  by  me  (the  slieritf)  for  this  time  only  thereto  specially  appointed."  W.  W ,  who 
was  the  defendant's  turnkey,  proceeded  with  the  prisoner  towards  the  place  of  destina- 
tion. Tlie  prisoner  having-  escaped,  tlie  court  of  C.  P.  held  that  the  sheriff  having  spe- 
cially directed  the  warrant  to  W.  W.,  the  defendant  was  not  liable  upon  his  covenant. 

'  Indictment  for  an  Escape'. — The  indictment  for  an  escape,  whether  negligent  or  volun- 
tary, must  show  that  the  party  was  actually  in  tiie  defendant's  custody  for  some  crime, 
or  upon  some  commitment  on  suspicion;  and  it  is  not  sufficient  to  say  that  he  was  in  the 
defendant's  custody,  and  charged  with  such  crime;  for  that  is  no  allegation  that  he  was 
in  custody  upon  that  charge.  2  Hawk.  P.  C.  c.  97.  s.  4.  It  should  show  that  the  pri- 
soner went  at  large,  and  the  time  when  the  offence  was  committed  for  which  the  party 
was  in  custody;  not  only  that  it  may  appear  that  it  was  prior  to  the  escape,  but  also  that 
it  was  subsequent  to  the  last  general  pardon.  An  indictment  for  a  voluntary  escape, 
must  allege  that  the  defendant  feloniously  and  voluntarily  permitted  the  prisoner  to  go  at 
large,  and  must  also  show  the  species  of  crime  for  which  the  party  was  imprisoned ;  for 
it  will  not  be  sufficient  to  say  in  general  that  he  was  in  custody  for  felony,  &.c.  It  is 
questionable,  however,  whether  such  certainty,  as  to  the  nature  of  the  crime,  be  necessary 
in  an  indictment  for  a  negligent  escape,  as  it  is  not,  in  such  a  case,  material  whether 
the  person  who  escaped  were  guilty  or  not.     1  Russ.  374 ;  Chitt.  Coll.  Stat.  tit.  Escape. 

Evidence,  Trial,  and  Conviction  for  an  Escape. — It  seems  to  be  clear,  that  a  keeper 
who  voluntarily  suffers  another  to  escape  who  was  in  his  custody  for  felony,  cannot  be 
arraigned  for  such  escape  as  for  felony,  until  the  principal  be  attainted,  for  that  the 
felony  of  the  prisoner  shall  not  be  tried  between  the  king  and  the  keeper,  because  the 
prisoner  is  a  stranger  thereunto;  yet  he  may  be  indicted  and  tried  for  it  as  a  mis- 
prision  before  the  attainder  of  the  principal  offender.  2  Hawk.  c.  19,  s.  26;  2  Inst. 
591,592. 

By  the  4  Geo.  IV.  c.  64,  s.  44.  "And,  to  the  intent  that  prosecutions  for  escapes, 
breaches  of  prison,  and  rescues,  may  be  carried  on  with  as  little  trouble  and  expense  as 
is  possible,  be  it  enacted.  That  any  offender  escaping,  breaking  prison,  or  being  rescued 
therefrom,  may  be  tried  either  in  the  jurisdiction  where  the  offence  was  committed,  or 
in  that  where  he  or  she  shall  be  apprehended  and  retaken;  and  in  case  of  any  prosecu- 
.  tioii  for  any  such  escape,  attempt  to  escape,  breach  of  prison,  or  rescue,  either  against  the 
offender  escaping,  or  attempting  to  escape,  or  having  broken  prison,  or  having  been  res- 
cued, or  against  any  other  person  or  persons  concerned  therein,  or  aiding,  abetting,  or 
assisting  the  same,  a  certificate  given  by  the  clerk  of  assize,  or  other  clerk  of  the  court 
ill  which  such  offender  shall  have  been  convicted,  shall,  together  with  due  proof  of  the 
identity  of  the  person,  be  sufficient  evidence  to  the  court  and  jury  of  the  nature  and  fact 
of  the  conviction,  and  of  the  species  and  period  of  confinement  to  which  such  person  was 
sentenced."  The  certificate,  to  make  it  evident  under  this  enactment,  must  set  forth  the 
effect  and  substance  of  the  conviction.     Kex  v.  Watson,  R.  Sf  R.  468. 

Punishment  of  an  Escape. — If  a  felon  escape  before  arrest,  it  is  not  punishable  as  a 
felony;  but  for  the  flight  he  forfeits  his  goods  when  presented.    HaWs  Sum.  111. 

Wherever  a  person  is  found  guilty  upon  an  indictment  or  presentment  of  a  neglis:ent 
escape  of  a  criminal  actually  in  his  custody,  he  is  punishable  by  fine  and  imprisonment, 
according  to  the  quality  of  the  offence.     2  Hawk.  c.  19,  s.  31 ;  c.  20,  s.  6. 

And  it  seems  to  be  tl)€  better  opinion,  that  the  sheriff  is  as  much  liable  to  answer  for 
a  negligent  escape  suffered  by  his  bailiff  as  if  he  had  actually  suffered  it  himself,  and 
that  the  court  may  charge  either  the  sheriff  or  the  bailiff  for  such  an  escape;  and  if  a 
deputy  gaoler  be  not  sufficient  to  answer  a  negligent  escape,  his  principal  must  answer 
for  him.     2  Hawk.  c.  19,  s.  29  ;  Rex  v.  Fell,  1  Ld.  Raym.  424. 

It  seems  to  be  generally  agreed,  that  a  voluntary  escape  suffered  by  an  officer  amounts 
to  the  same  kind  of  crime,  and  is  punishable  in  the  same  degree,  as  the  offence  of  which 
the  party  was  guily,  and  for  which  he  was  in  custody;  whether  it  be  treason,  felony,  or 
trespass,  (2  Hawk.  c.  19,  s.  22.)  if  the  cause  be  expressed  in  the  commitment.  2  Inst.  52. 

But  yet  a  voluntary  escape  is  no  felony,  if  the  act  done  were  not  felony  at  the  time  of 
the  escape  made,  as  in  case  of  a  mortal  wound  given,  and  the  party  not  dying  till  after 
the  escape;  but  the  officer  may  be  fined  to  the  value  of  his  goods.     Dalt.  c.  159. 

Also  a  voluntary  escape  suffered  by  one  who  wrongfully  takes  upon  him  the  keeping 
of  a  gaol,  seemfe  to  be  punishable  in  the  same  manner  as  if  he  was  never  so  rightfully 

VOL.  I. — 52 


605  HISTORIA  PLACITORUM  CORONA. 

entitled  to  such  custody ;  for  that  the  crime  is  in  both  cases  of  the  same  ill  consequence 
to  tlie  public:  and  there  seems  to  be  no  reason  that  a  wrongff'ul  officer  should  have 
greater  favour  than  a  rightful,  and  that  for  no  other  reason  but  because  he  is  a  wrongful 
one.  2  Hatok.  c.  19,  s.  23. 

But  it  seemetli  to  be  clear  that  no  one  is  punishable  as  for  felony  for  the  voluntary 
escape  of  a  felon,  but  the  person  only  who  is  actually  guilty  of  it;  and  therefore  that  the 
principal  gaoler  is  only  finable  for  a  voluntary  escape  suffered  by  his  deputy ;  for  that  no 
one  shall  suffer  capitally  for  the  crime  of  another.  Jd.  s.  27. 

The  Mutiny  Act  in  general  enacts.  That  if  any  offender,  under  sentence  of  death  by 
court  martial,  shall  obtain  a  conditional  pardon,  (viz.  on  transportation,)  all  the  laws  in 
force  touching  the  escape  of  felons  under  sentence  of  death  shall  apply  to  such  offender, 
and  to  all  persons  aiding,  abetting,  or  assisting  in  any  escape,  or  intended  escape  of  any 
such  offender, or  contriving  any  such  escape,  from  the  time  when  an  order  (for  his  trans-, 
portation)  shall  be  made  by  a  justice  or  baron,  and  during  all  the  proceedings  had  for- 
the  purposes  mentioned  in  the  act. 

The  52  Geo.  III.  c.  156,  provides  against  the  aiding  of  the  escape  of  prisoners  of  War. 

The  offence  of  aiding  a  prisoner  of  war  to  escape  is  not  complete,  if  such  prisoner  is 
acting  in  concert  with  those  under  whose  charge  he  is  merely  to  detect  the  defendant, 
who  was  supposed  to  have  assisted  in  the  escape  of  other  prisoners,  and  such  prisoner 
having  no  intention  to  escape.     Rex  v.  Martin,  Russ.  Sf  R.  C.  C.  196. 

Aiding  in  attempting  to  Escape. — The  mere  aiding  an  attempt  of  persons  confined  to 
make  an  escape,  though  no  escape  should  ensue,  is  made  highly  penal  by  stat.  16  Geo.  II. 
c.  31,  s.  1,  which  enacts,  "that  if  any  person  shall  assist  any  prisoner  to  attempt  his 
escape  from  any  gaol,  though  no  escape  be  actually  made,  if  such  prisoner  were  then 
attainted  or  convicted  of  treason,  or  felony,  (excepty  petty  larceny,)  or  lawfully  com- 
mitted to  or  detained  in  any  gaol  for  treason,  or  felony,  (except  petty  larceny,)  ex- 
pressed in  the  warrant  of  commitment  or  detainer,  he  shiill  be  guilty  of  felony,  and 
be  transported  for  seven  years:  and  if  such  prisoner  were  then  convicted  of,  committed 
to,  or  detained  in  a  gaol  for  petty  larceny,  or  any  other  crime,  not  being  treason  or 
felony,  expressed  in  the  warrant  of  commitment  or  detainer,  or  was  then  in  gaol  upon 
any  process  for  debt,  damages,  costs,  or  sum  of  money,  amounting  to  lOOZ.  he  shall  be 
guilty  of  a  misdemeanor,  and  be  liable  to  fine  and  iniprisonmeiit." 

Sect.  3.  "  If  any  person  shall  assist  any  prisoner  to  attempt  to  escape  froln  any  con- 
stable, or  other  officer  or  person  who  shall  have  the  lawful  charge  of  him  in  order  to 
carry  him  to  gaol,  by  virtue  of  a  warrant  of  commitment  for  treason  or  felony,  (except 
petty  larceny,)  expressed  on  such  warrant;  or  if  any  person  shall  assist  any  felon  to 
attempt  his  escape  from  on  board  any  boat,  sliip,  or  vessel,  carrying  felons  for  trans- 
portation, or  from  the  contractor  for  the  transportation  of  such  felons,  or  his  agents,  or 
any  other  person  to  whom  such  felon  shall  have  been  lawfully  delivered  in  order  for 
transportation,  he  shall  be  guilty  of  felony,  and  be  transported  for  seven  years."  All 
prosecutions  on  this  act  to  be  commenced  within  a  year  after  the  offence  committed,'  . 

The  stat.  16  Geo.  II.  c.  31,  does  not  extend  to  cases  where  an  actual  escape  is  madej 
but  must  be  confined  to  cases  of  an  atteinpt,  without  effecting  the  escape  itself.  Mr.  J. 
Buller,  in  delivering  the  opinion  of  the  judges,  (O.  B.  June,  1726,)  observed,  "The 
statute  purports  to  be  made  for  the  further  punishing  of  those  persons  who  shall  aid  ancT 
assist  persons  attempting  to  escape,  and  makes  the  offence  felony;  it  creates  anew 
felony;  but  the  offence  of  assisting  a  felon  in  making  an  actual  escape  was  felony 
before,  and  therefore  does  not  seem  to  fall  within  the  view  or  intention  of  the  legis- 
lature when  they  made  this  statute."  Rex  v.  Tilley  and  others,  O.  B.  April  Sess.  1795; 
2  Leach,  662 ;  see  also  Rex  v.  Burridge,  3  /'.  Wms.  439  ;  Rex  v.  Young  and  Chissell, 
Winchester  Lent  Ass.  1801,  coram  Le  lilanc,  J. 

It  is  a  misdemeanor,  iiidiotable  at  common  law,  to  aid  a  person  to  escape  from  cus- 
tody, though  ho  be  confined  under  the  remand  of  tho  commissioners  for  the  relief  of 
insolvent  debtors,  and  not  on  any  criminal  charge.     Reg.  v.  Allan,  5  Jar.  296. 

•  Delivering  instruments  is  within  the  act,  though  the  prisoner  has  been  pardoned  of 
the  offences  of  which  he  has  been  convicted,  on  condition  of  transportation.  Rex  v. 
^haw,  R.  ^  R.  C.  C.  526.  '       ■ 

The  stat.  4  Geo.  IV.  c.  64,  s.  43,  enacts,  that  "  if  any  person  shall  convey  or  cause  to 
be  conveyed  into  any  prison  to  which  this  act  shnll  extend,  any  mask,  vizor,  or  other 
disguise,  or  any  instrument  or  arms  proper  to  fiicilitatc  tiie  escape  of  any  prisoners,  and 
the  same  shall  deliver,  or  cause  to  be  delivered,  to  any  prisoner  in  such  prison,  or  to  any 
other  person  there,  for  the  use  of  any  such  prisoner,  without  the  consent  or  privity  of 


HISTORIA  PLACITORUM  CORONA.  605 

the  keeper  of  such  prison,  every  such  person  shall  be  deemed  to  have  delivered  such  vizor 
or  disg^uise,  instrument  or  arms,  with  intent  to  aid  and  assist  such  prisoner  to  escape  or 
attempt  to  escape;  and  if  any  person  shall,  by  any  means  whatever,  aid  and  assist  any 
prisoner  to  escape,  or  in  attempting  to  escape  from  any  prison,  every  person  so  offend, 
ing-,  whether  an  escape  be  actually  tnade  or  not,  shall  be  guilty  of  felony,  and  being 
convicted  tiiereof,  shall  be  transported  beyond  the  seas,  for  a  term  not  exceeding  four- 
teen years."     See  Burn's  Just.  Tit.  ^Escape,''  29  Land.  Ed.  1845. 

In  the  several  States  of  the  United  Slates,  with  but  a  few  partial  exceptions,  severe 
penalties  are  prescribed  against  both  keeper  and  prisoner,  in  case  of  escape.  At  com- 
mon law  it  is  held  that  every  liberty  given  to  a  prisoner  not  authorized  by  law  is  an 
escape.  Colby  v.  Sampson,  5  Mass.  310.  312. 

It  is  not  necessary  to  prove  negligence  in  the  defendant:  the  law  implies  it,  (see  post, 
600.)  but  if  the  escape  were  not  in  fact  negligent,  if  the  defendant  by  force  rescued  him- 
self, or  were  rescued  by  others,  and  the  defendant  made  fresh  pursuit  after  him,  but 
without  effect:  all  tliis  must  be  shown  upon  the  part  of  the  defendant.  It  is  enough  also 
to  prove  that  the  warrant  on  which  the  prisoner  was  convicted  was  legal,  it  is  not  requi- 
site for  the  prosecutor  to  prove  that  he  actually  committed  the  offence  with  which  he 
was  charged.   2  Hawk.  c.  28.  s.  16. 

On  a  charge  against  the  prisoner  for  breach  of  prison  the  same  principle  obtains, 
though  if  he  can  prove  that  no  such  offence  was  ever  actually  committed,  or  that  he  was 
arrested  and  detained  without  any  reasonable  cause  of  suspicion  against  him,  (see  post, 
610,  611,)  or  if  he  have  been  subsequently  indicted  for  the  offence  and  acquitted,  this 
will  be  a  sufficient  defence  to  the  indictment  for  breach  of  prison. 

A  person  confined  in  a  jail,  who  attempts  to  escape  by  breaking  of  the  prison,  in  con- 
sequence of  which  a  fellow  prisoner,  confined  for  felony,  escapes,  is  guilty  of  an  offence 
within  the  New  York  act,  and  may  be  punished  by  imprisonment  in  the  State  prison. 
T/ie  People  v.  Rose,  12  Johnson,  K,  339. 

Aiding  and  assisting  to  escape  from  jail  a  person  committed  on  suspicion  of  having 
beet*  accessary  to  the  breaking  the  house  of  <S.  with  intent  to  commit  felony,  is  not  in- 
dictable under  a  repealed  statute  of  New  York.  Sess.  24,  c.  58.  s.  12,  13.  1  N.  Y.  Rev. 
Laws,  411.)  because  the  prisoner  was  not  committed  on  any  distinct  and  certain  charge 
of  felony.    The  People  v.  Washburn,  10  Johns.  R.  160. 

Lying  in  wait  near  a  jail,  by  agreement  with  the  prisoner,  and  carrying  him  away, 
is  not  an  offence  against  the  same  statute,  but  it  is  a  misdemeanor  at  common  law.  The 
People  V.  Tompkins,  9  Johnson,  R.  70.    Whart.  Am.  Crim.  L.  551. 


CHAPTER  LIII.  [  606  ] 

CONCERNING    RESCUES    OF    PRISONERS    IN    CUSTODY    FOR    FELONY. 

Rescue  of  a  person  imprisoned  for  felony  is  also  felony  by  the  com- 
mon law. 

To  make  a  rescue  a  felony,  1.  It  is  necessary  that  the  felon  be  in 
ctisiodi/,  or  under  arrest  for  felony,  and  therefore  if  A.  hinder  an 
arrest,  whereby  the  felon  escapes,  the  township  shall  be  amerced  for 
the  escape,  and  ./?.  shall  be  fined  for  the  hindrance  of  his  taking;  but 
it  is  not  felony  in  A.  because  the  felon  was  not  taken.  3  E.  3.  Co- 
ron.  333.  Slarnf.  P.  C.  p.  31.  a. 

2.  Again,  to  make  a  rescue  felony,  tlie  party  rescued  must  be  under 
custody /or  felony  or  suspicion  offeloni/,  and  it  is  all  one,  whether 
he  be  in  custody  for  that  account  by  a  private  person,  or  by  an  officer 
or  warrant  of  a  justice,  for  where  the  arrest  of  a  felon  is  lawful,  the 
rescue  of  him  is  a  felony. 

It  seems  that  it  is  necessary  that  he  should  have  knowledge  that 


606  HISTORIA  PLACITORUM  CORONA. 

the  person  is  under  arrest  for  felony,  if  he  be  in  the  custody  of  a  pri- 
vate person. 

But  if  he  be  in  the  custody  of  an  officer,  as  constable  or  sheriff, 
there  at  his  peril  he  is  to  take  notice  of  it;  and  so  it  is  if  there  be 
felons  in  a  prison,  and  ^d.  not  knowing  of  it,  breaks  the  prison,  and 
lets  out  the  prisoners,  tho  he  knew  not  that  there  were  felons  there, 
it  is  felony,  and  if  traitors  were  there,  it  is  treason.  P.  16  Car.  1. 
Croke  p.  583.  Bensfead^s  case  per  omnesjtisticiarios. 

A  return  of  a  rescue  of  a  felon  by  the  sheriff  against  ^.  is  not  suf- 
ficient to  put  him  to  answer  for  it  as  a  felony,  without  indictment  or 
presentment,  by  the  statute  of  25  E.  3.  cajj.  4.  1  H.  7.  6.  a.  per  cu- 
riarn,  2  ^.  3.   1  Coron.  149. 

As  in  case  of  an  escape,  so  in  case  of  a  rescue,  if  the  party 
[]  607  ]]  rescued  be  imprisoned  for  felony,  and  be  rescued  before  in- 
dictment, the  indictment  must  surmise  a  felony  done  as  well 
as  an  imprisonment  for  felony  or  suspicion  thereof;  but  if  the  party 
be  indicted  and  taken  by  a  Capias  and  rescued,  then  there  needs 
only  a  recital  that  lie  was  indicted  prout,  and  taken  and  rescued. 

But  tho  the  rescuer  may  be  indicted  before  the  principal  be  con- 
victed and  attainted,  yet  he  shall  not  be  arraigned  or  tried  before  the 
principal  be  attaint  for  the  reason  given,  cap.  51. 

The  rescuer  of  a  prisoner  for  felony,  tho  not  within  clergy,  yet 
shall  have  his  clergy. 

Vide  plus  capite  proximo,  for  many  things  there  said  are  applica- 
ble to  the  case  of  a  rescue.[lj 

[1]  Rescue  is  the  forcibly  and  knowingly  freeing'  another  from  an  arrest  or  imprison- 
ment ;  and  it  is  generally  the  same  otFence  in  the  stranger  so  rescuing  as  it  would  have 
been  in  a  gaoler  to  have  voluntarily  permitted  an  escape.  A  rescue,  therefore,  of  one 
apprehended  for  felony,  is  felony;  for  treason,  treason;  and  for  a  misdemeanor,  a  misde- 
meanor also.  But  here  likewise,  as  upon  voluntary  escapes,  the  principal  must  first  be 
attainted  or  receive  judgment  before  the  rescuer  can  be  punished  :  The  State  v.  Cuth- 
bert.  Chart.  R.  I'S;  4  Steph.  Com.  256;  and  for  the  same  reasons;  because,  perhaps  in 
fact  it  may  turn  out  that  there  has  been  no  offence  committed.    See  4  Blac.  Com.  131. 

Rescous  is  an  ancient  French  word,  coining  from  rescourer,  that  is  recuperare;  to 
recover;  and  signifies  a  forcible  setting  at  liberty,  against  law,  a  person  arrested  by  the 
process  or  course  of  law.    1  Inst.  160. 

Rescue  is  a  common  law  felony,  if  the  party  rescued  be  a  felon.  Rex  v.  Haswell,  R. 
^  R.  458.  It  is  a  misdemeanor  if  the  party  rescued  be  guilty  of  a  misdemeanor.  See 
a  case  of  Rex  v.  Stakes,  5  C.  Sf  P.  14!S;  1  Russ.  C.  Sf  M.,  by  Greaves,  435.  If  the  party 
rescued  be  guilty  of  high  treason,  the  rescuer  would  be  guilty  of  high  treason.  2  Hawk. 
c.  21.  s.  7. 

It  is  said  that  the  rescue  of  a  prisoner  in, any  of  the  superior  courts  comraifted  by  the 
justices,  is  a  great  misprison,  for  which  the  party  and  the  prisoner,  if  assenting,  will  be 
liable  to  be  punished  even  by  imprisonment  for  life,  arid  forfeiture  of  goods  and  chattels; 
though  no  stroke  or  blow  were  given.     1  East,  P.  C.  c.  8.  s.  3;  Rac.  Ah.  Rescue,  (E). 

A  liindrancc  of  a  person  to  be  arrested,  that  has  committed  felony,  is  a  misdemeanor, 
but  no  felony.     Hale's  Sum.  1 16;  2  Hawk.  c.  21.  s.  7  ;  R.  Sf  R.  458. 

Altliough  a  prison  breaker  may  be  arraigned  for  that  offence,  before  he  be  arraigned  for 
the  crime  for  which  he  was  imprisoned,  yet  he  who  rescues  one  imprisoned  for  felony, 
cannot,  according  to  the  better  opinion,  be  arraigned  for  such  offence,  as  for  a  felony,  till 
the  principal  ofFender  be  attainted;  but  he  may  be  immediately  proceeded  against  fbr  a 
misprison,  if  the  queen  pleases.  2  Hawk.  c.  2\.  s.  7.  Therefore,  if  the  principal  die  be- 
fore the  ;ittaindcr,  lie  shall  be  fined  and  imprisoned.     Hale's  Sum.  116. 

An  indictment  of  rescous  must  set  forth  tiie  nature  and  cause  of  the  imprisonment, 


HISTORIA  PLACITORUM  CORONA.  607 

and  the  special  circumstances  of  the  fact  in  question.  2  Hawk.  c.  21.  s.  5.  The  word 
recussit,  or  something  equivalent  to  it,  to  show  that  the  rescue  was  forcible,  and  ag-ainst 
the  will  of  the  officer.  Kex  v.  Burridge,  3  P.  Wms.  483;  5  Burns^  Just.  p.  121.  tit. 
"Rescue." 

By  I  S(  2  Geo.lV.  c.  88,  entitled,  "An  Act  to  amend  the  Law  of  Rescue,"  sect.  I. 
rescuingf  persons  charged  with  felony,  is  punishable  with  seven  years  transportation,  or 
imprisonment  for  not  less  than  one  year,  and  not  more  than  three  years.  And  by  sect. 
II.  assaultinor  any  lawful  officer  to  prevent  the  apprehension  or  detainer  of  persons 
charged  with  felony,  is  punisliable  with  two  years  imprisonment  in  addition  to  other 
pains  and  penalties  incurred.  See  5  Geo.  IV.  c.  84.  s.  22.  This  section  is,  however,  re- 
pealed by  9  Geo.  IV.  c.  31.  as  to  punishment  , 

An  indictment  for  a  rescue,  must  show  that  the  person  rescued  was  lawfully  in  cus- 
tody, and  set  out  the  writ  and  warrant.  1  Stark.  Cr.  PI.  156;  Archb.  Crim.  PI.  550. 
10  Lond.Ed. 

An  indictment  for  a  rescue  from  a  constable,  must  state  the  charge  made  before  the 
magistrate,  the  warrant  and  its  delivery  to  the  constable,  and  that  the  party  was  in  cus- 
tody under  the  warrant.     Archb.  Cr.  PI.  309.  551  ;  Rex  v.  Osmer,  5  EnsVs  Rep.  304. 

By  9  Geo.  IV.  c.  4.  §  13.  entitled  the  Mutiny  Act,  persons  under  sentence  of  death  by 
court  martial,  having  obtained  a  conditional  pardon,  escaping  out  of  custody,  and  all  par- 
ties  aiding  such  escape,  are  punishable  as  felons.  Rex  v.  Stanley,  R.  Sf  R.  C.  C.  432; 
see  Ryland's  note,  4  Bl.  Cum.  131.  21  Land.  Ed. 


CHAPTER  LIV. 

CONCERNING    ESCAPES    AND    BREACH    OF    PRISON,    BY    THE    PARTY 
HIMSELF    THAT    IS    IMPRISONED    FOR    FELONY. 

At  common  law  it  was  held,  that  if  any  imprisoned  for  a  misde- 
meanor, tho  not  felony,  had  broke  the  prison  and  escaped,  it  had 
been  felony.  Bract.  Lib.  II. (a)  Stamf.  P.  C.  p.  30.  b.  2  Co.  Instit. 
p.  589.{b) 

Bnt  by  the  statute  of  1  E.  2.  de  frangentibus  prisonam 
the  severity  of  the  common  law  is  moderated,  viz.  Nullus  [  608  ] 
de  castero,  qui  prisonam  fregerit,  snbeat  judicium  vitse  vel 
membrorum  pro  fractione  prisonae  tantum,  nisi  causa,  pro  qua  captus 
&  imprisonatus  fnerit,  tale  judicium  requirit,  si  de  ilia  secundum  le« 
gem  &  consuetudinem  terras  fuerit  convictus,  licet  temporibus  prse- 
teritis  aliter  fieri  consuevit.[l] 

(o)  This  should  be  Lib.  III.  Tract.  2.  de  Corona,  cap.9.f.  124.  a.  In  this  place  Bracton 
carries  the  matter  very  far;  for  he  says,  tho  the  party  were  innocent,  and  had  only  con- 
spired to  escape,  he  was  ultimo  supplicio  pvniendus. 

(b)  But  this  severity  is  complained  of  as  an  abuse,  IMirror,  cap.  5.  §  1.  and  it  was  the 
opinion  of  Billing,  chief  justice,  and  the  rest  of  the  judges,  1  //.  7.  6.  a.  that  a  rescue  of 
a  felon  was  felony  at  common  law,  but  not  in  the  person  himself,  till  the  statute  of  1  E.  2. 
This  lord  Coke  says  must  be  intended,  where  others  break  the  prison  without  his  privity. 
2  Inst.  589. 


[1]  Breach  of  prison  by  the  offender  himsdf,  when  committed  for  any  cause,  was 
felony  at  the  common  law,  ante  p.. ^S8,  or  even  conspiring  to  break  it.  But  this  severity 
is  mitigated  by  the  slat,  de  frangentibus  prisonam,  1  Ed.  II.  cited  by  Hale  supra,  which 
enacts,  tiiat  no  person  shall  have  judgment  of  life  or  member  for  breaking  prison,  unless 
committed  for  some  capital  offence.     So  that  to  break  prison  and  escape,  when  lawfully 


608  HISTORIA  PLACITORUM  CORONA. 

Upon  this  statute,  therefore,  to  make  a  felony  by  breach  of  prison 
these  things  must  concur:  1.  The  party  must  be  in  prison.  2.  He 
must  be  in  prison  for  felony.  3.  He  must  break  that  prison.  Many 
of  these  things  have  been  discussed  before.  I  shall  resume  and  add 
"what  shall  be  necessary  for  the  explication  of  this  felony. 

I.  What  is  a  prison,  and  who  shall  be  said  a  person  in  prison. 

If  a  man  be  imprisoned  for  felony  in  the  prison  of  a  franchise,  and 
breaks  and  escapes,  this  is  a  breaker  of  prison,  and  it  is  as  to  this 
purpose  the  king's  prison, (c)  tho  the  franchise  or  profit  be  the  lord's. 
2  B.  3.   1  Coron.  149.  Stamf.  P.  C.  31.  a.  2  Co.  Instit.  5S9. 

So  at  common  law  when  sanctuary  was  in  use,  if  a  felon  had  esr 
caped  to  a  church,  and  there  had  been  watched  by  the  vill  where  the 
church  is,  and  he  had  broken  the  church  and  escaped,  this  had  been 
a  felony  within  this  statute.  Stamf.  P.  C.  p.  30.  b.  3  E.  3.  Coron.  290. 

Whether  the  breach  of  the  prison  of  the  ordinary  by  a  clerk  con- 
vict or  attaint  before  purgation  had  been  felony,  vide  Stamf.  P.  C. 
p.  31,  33.  but  that  learning  is  now  antiquated,  because  by  the  statute 
of  18  Eliz.  cap.  7.  the  prisoner  is  not  now  delivered  to  the  ordinary; 
and  therefore  I  shall  not  farther  examine  it. 

(c)  Stamford  in  the  place  here  mentioned  thinks  it  is  not  the  king's  prison,  and  there- 
fore at  common  law  the  breaking  of  it  would  not  be  felony;  but  by  the  statute  of  1  E.  2. 
it  matters  not  whetiier  it  be  the  king's  prison  or  no,  for  it  speaks  de  prisona  generally, 
and  not  de  prisona  nostra;  however,  as  it  must  be  intended  a  legal  prison,  which  cannot 
be  without  a  grant  from  the  crown,  our  author's  construction  is  very  reasonable,  that  all 
such  prisons  should  be  taken  as  to  this  purpose  to  be  the  king's  prisons. 


committed  for  any  treason  or  felony,  remains  still  felony  as  at  common  law;  and  to 
break  prison,  whether  it  be  the  county  gaol,  the  stocks,  or  other  usual  place  of  security, 
when  lawfully  confined  upon  any  other  inferior  charge,  is  still  punishable  as  a  high  mis- 
demeanor by  fine  and  imprisonment.     4  Blac.  Com.  130. 

An  actual  breaking  is  the  gist  of  this  offence,  and  must  be  stated  in  the  indictment. 
It  must  also  appear  that  the  party  was  lawfully  in  prison,  and  for  a  crime  involving 
judgment  of  life  or  member;  it  is  not  enough  to  allege  that  he  feloniously  broke  prison. 
2  Inst.  591.    1  Russ.  C.  Sf  M.  381. 

If  lawfully  committed,  the  party  breaking  prison  is  within  the  statute,  although  he 
may  be  innocent;  as  if  committed  by  a  magistrate  upon  strong  suspicion.  2  Inst.  590 
1  Russ.  C.  S(  M.  378. 

A  person  confined  in  a  gaol  by  virtue  of  a  void  warrant,  may  lawfully  liberate  himself 
by  breaking  the  prison,  using  no  more  force  tiian  is  necessary  to  accomplish  this  obj6ct; 
nor  is  it  a  crime  or  misdemeanor  in  such  person,  that  while  his  sole  object  was  to  libe'- 
rate  himself,  other  persons  lawfully  confined  for  atrocious  crimes  in  tlie  same  room  with 
him,  in  consequence  of  such  prison  breach,  made  their  escape.  Tlte  State  v.  Leach, 
7  Conn.  R.  752. 

To  constitute  a  felonious  prison  breach  the  party  must  be  committed  for  a  crime 
which  is  capital  at  the  time  of  the  breaking.  1  Russ.  C.  6f  M.  370.  Calebs  case,  Plowd. 
401.  A  constructive  breaking  is  not  sufficient,  tlicrefore,  if  a  person  goes  out  of  prison 
without  obstruction,  it  is  only  a  misdemeanor  :  post  p.  611. 

An  actual  intent  to  break  is  not  necessary.  Tho  statute  extends  to  a  prison  in  law 
as  well  as  to  a  prison  in  fact.    2  Inst.  589. 

Prison  breach,  or  rescue,  is  a  connnon  law  felony,  if  the  prisoner  breaking  prison  or 
rescued  is  a  convicted  felon;  and  it  is  punishable  at  connnon  law  by  imprisonment,  and 
under  19  Geo.  III.  c.  74,  s.  4,  by  tlirce  times  whipping. 

Throwing  down  loose  bricks  at  the  top  of  a  prison-wall,  placed  there  to  impede 
escape  and  give  alarm,  is  prison  breach,  though  they  were  thrown  down  by  accident 
Hex  V.  Haswdl,  R.  Sf  R.  C.  C.  458. 


HISTORIA  PLACITORUM  CORONA.  609 

If  a  person  be  taken  for  felony,  and  put  in  the  stocks  and  break  it, 
i\ns  is  a'  breaking  of  prison,  and  felony  within  the  law.  Dt/.  99.  a. 
2  Co.  Inst.  589.  ^Stamf.  P.  C.  p.  30   b. 

'  So  it  is  if  the  constable  or  any  other  secure  a  felon  in  the  house 
of  him  that  makes  the  arrest,  or  in  the  house  of  any  other,  and  he 
break  it  and  escape,  it  is  felony. 

Yet  farther,  if  ./^.  arrest  B.  for  felony  or  suspicion  of  felony,  there 
being  de  faclo  a  felony  committed,  and  being  in  the  hands  of  ./^.  he 
violently  rescueth  himself  and  escapeth,  this  is  a  breach  of  prison  and 
a  felony,  for  so  are  the  words  of  my  lord  Coke,  2  Instit.  5S9.  "  Nota, 
He  that  is  in  the  stocks,  or  under  lawful  arrest,  is  said  to  be  in  prison, 
tho  he  be  not  infra  carceris  parietes.^'  And  Stamford  ubi  siiprft 
p.  30.  b.  Et  77ota  quant  a  ceo  que  chescun  que  est  soubs  arrest  pour 
felony  est  prisoner  auxy  bien  hors  de  gaol  come  deins,  issint  que  sil 
soit  iorsque  in  cippes  in  le  haut  street  ou  hors  de  cippes  in  le  posses- 
sion d'  ascun,  que  lui  aver  arrest,  &  faite  escape  ceo  est  debrusenient 
de  prison  in  le  prisoner,  which  must  be  intended,  as  it  seems,  of  a 
violent  escape,  viz.  rescuing  himself  out  of  custody. 

II.  What  shall  be  said  a  being  in  prison  for  such  a  cause,  as  re- 
quires jfff//c/«w  vilx  vel  menibroriim. 

It  seems  it  is  intended  only  of  capital  offenses,  as  felony,  and  there- 
fore if  a  man  be  committed  for  petit  larciny,or  homicide  5e  (/^/en^en- 
do,  or  per  infortunium,  and  breaks  prison,  this  is  not  felony,  for  the 
principal  offense  non  requirit  tale  judicium.  2  Co.  Instit.  590. 

But  if  the  commitment  expresses  larciny  above  value  or  raan- 
. slaughter,  tho  de  facto  it  were  but  petit  larciny,  or  per  infortunium 
.or  se  defendendo,  and  possibly  would  appear  so  upon  the  evidence, 
yet  this  escape  will  be  felony. 

Touching  my  lord  Coke's  opinion  of  the  form  of  the  Mittimus^ 
that  it  must  particularly  express  the  nature  of  the  felony,  and  must 
have  an  apt  conclusion,  I  have  said  enough  before;  I  think  it  is  suffi- 
cient if  it  be  generally  for  felony,  although  it  want  that  regular  con- 
clusion {fi/i  he  be  delivered  by  due  course  of  common  laiv);  yet  these 
defaults  will  not  excuse  the  breach  of  prison  from  felony:  but  possibly 
if  it  express  no  cause,  the  case  may  be  otherwise,  because 
the  substance  of  the  Mittimus  must  be  recited  in  the  indict-  f  610  1 
ment. 

For  it  is  very  plain,  that  antiently  there  were  more  felons  commit- 
ted to  the  common  gaol  without  Mittimus  in  writing  than  were  with 
it;  such  were  all  the  commitments  by  constables,  watchmen,  and  pri- 
vate persons  arresting  for  felony  and  bringing  to  the  common  gaol ; 
and  Mittimus's  were  not  of  so  antient  a  date  as  justices  of  peace, 
and  they  were  not  before  1  E.  3.{d)  and  yet  breach  of  prison  by 
felons  was  felony  even  from  2  E.  \.  and  not  only  from  1  E.  2. 

It  is  therefore  enough  if  the  gaoler  have  a  sufficient  notification 
of  the  nature  of  the  offense,  for  which  he  was  committed,  and  the 
prisoner  of  the  offense  whereof  he  was  arrested,  and  commonly  they 
know,  their  own  guilt,  if  they  are  guilty,  without  much  notification. 

{d)  See  1  £.3.  cap.  16. 


610  HISTORIA  PLACITORUM  CORONA. 

And  again,  by  what  hath  been  said,  breach  of  prison  is  not  only 
■where  the  felon  is  formally  committed  to  gaol  by  a  Mittirnus,  but 
if  he  be  put  in  the  stocks,  kept  in  the  constable's  house,  nay,  under 
the  custody  of  him  that  makes  the  arrest,  and  he  break  prison, 
it  is  a  felony,  tho  in  these  cases  there  neither  are  nor  can  be  Mitli- 
mus's. 

If  ./?.  arrest  B.  for  suspicion  of  felony,  and  carry  him  to  the  com- 
mon gaol,  and  there  deliver  him,  as  he  may  do,  13  E.  4.  9.  a, 
4  E.  3.  cap.  10.  and  he  break  prison,  if  he  be  indicted  upon  it  there 
must  be  an  averment  in  the  indictment,  that  there  was  a  felony  com- 
mitted, and  ./?.  having  probable  cause  did  suspect  B.  and  arrested 
him  and  committed  him,  and  that  he  broke  the  prison,  and  this  must 
be  all  proved  upon  the  evidence. 

But  if  ^.  be  indicted  or  appealed  and  taken  by  Capias,  and  com- 
mitted, and  break  prison,  there  needs  no  averment  or  proof  that  a 
felony  was  done,  but  only  that  there  was  an  indictment  or  appeal, 
and  a  Capias  thereupon,  because  all  appears  by  matter  of  record. 
2  Co.  Instit.  590. 

But  a  lawful  commitment  may  be  for  suspicion  of  felony,  and  this 
is  within  this  statute;  yet  no  person  can  be  indicted  barely 
roil  3  of  suspicion  of  felony,  but  of  the  felony  itself.  43  E.  3. 
Coron.  454.  44  Jlssiz.  12.  2  Co.  Instit.  592. 

If  a  felony  be  made  by  act  of  parliament  subsequent  to  1  E.  2. 
and  a  person  be  committed  for  such  a  felony  and  break  prison,  yet 
this  is  felony.  2  Co.  Instit.  592. 

III.  What  shall  be  said  a  breaking  of  prison  by  a  person  commit- 
ted for  felony  to  make  a  felony. 

If  the  prison  be  fired  by  accident,  and  there  be  a  necessity  to  break 
prison  to  save  his  life,  this  excuseth  the  felony;  but  if  the  prison 
were  fired  by  the  prisoner  himself,  or  by  his  procurement,  the  break-' 
ing  to  save  his  life  is  nevertheless  felony,  for  it  was  a  necessity  of  hi^ 
own  creating.  2  Co.  Listit.  590. 

If  the  gaoler  set  open  the  prison  doors,  and  the  felon  escape,  this 
may  be  a  felony  in  the  gaoler,  but  is  no  breach  of  prison  to  make 
felony  in  the  prisoner. 

If  A.  be  arrested  or  imprisoned  for  felony,  and  B.  and  others 
without  the  consent  o{  J3.  rescue  Ji.  this  is  felony  in  the  rescuers, 
but  not  felony  in  */l.  But  if  A.  were  of  confederacy  with  B.  to 
do  it,  then  it  is  felony  in  B.  as  a  rescue,  and  in  A.  as  a  breach  of 
prison. 

And  so  it  is  if  B.  had  broke  the  prison  doors,  and  they  being 
open,  A.  had  gone  away,  this  had  been  felony  in  B.  but  not  felony 
in  A.  unless  it  were  done  by  his  confederacy,  or  procurement,  for  %/2. 
did  not  actually  break  prison.  2  Co.  Instit.  589.  1  H.  7.  6.  a. 

IV.  Touching  the  proceeding  for  felony  by  breach  of  prison. 

A.  is  committed  for  felony,  or  suspicion  thereof,  and  breaks  prison, 
he  may  be  indicted,  arraigned,  convicted,  and  have  judgment  for  the 
escape,  aliho  the  principal  felony  be  not  tried,  and  he  may  be  not 


HISTORIA  PLACITORUM  CORONA.  611 

guilty  of  the  felony;  and  so  it  differs  from  the  case  of  a  rescue  or 
escape  before,  and  the  reason  is,  because  here  it  is  the  same  person, 
there  they  are  divers,  and  therefore  in  the  latter  case  the  principal 
felony  shall  be  first  tried.   2  Co.  Instit.  592, 

And  yet  I  hold,  that  if  .^.  be  indicted  of  felony  and  committed, 
and  then  breaks  prison,  and  then  be  arraigned  of  the  prin- 
cipal felony  and  found  not  guilty,  now  Ji.  shall  never  be  [  612  ] 
indicted  for  the  breach  of  prison  ;  or  if  indicted  for  it  before 
the  acquittal,  and  then  he  is  acquitted  of  the  principal  felony,  he  may 
plead  that  acquittal  of  the  principal  felony  in  bar  to  the  indictment 
for  the  felony  for  breach  of  prison. 

And  so  it  was  pleaded  by  myself  in  the  case  of  one  Mrs.  Samford, 
who  was  severely  prosecuted  by  the  earl  of  Leicester,  upon  a  sus- 
picion that  she  had  stolen  his  jewels;  for  tho  while  the  principal 
felony  stood  untried,  it  stood  indifferent  whether  she  were  guilty  of 
the  principal  felony,  or  rather  the  breach  of  prison  was  a  presump- 
tion of  the  guilt  of  the  principal  offense,  yet  now  it  be  cleared,  that 
she  was  not  guilty  of  the  felony,  she  is  now  in  law  as  a  person  never 
committed  for  felony,  and  so  her  breach  of  prison  is  no  felony. 

The  felony  of  breach  of  prison  is  a  felony  within  clergy,  tho  the 
principal  felony  for  which  the  party  was  convicted  were  out  of 
clergy,  as  robbery  or  murder. 


CHAPTER  LV. 

OP  PRINCIPALS  AND    ACCESSARIES    IN    FELONY,  AND    FIRST    OF    ACCES- 
SARIES   BEFORE    THE    FACT. 

Having  gone  through  the  considerations  of  the  offenses  of  treasons, 
and  also  of  felonies  at  the  common  law,  it  will  be  seasonable  in  this 
place  to  consider  of  those  different  relations  of  principals  and  acces- 
saries, whereof  tho  much  hath  occasionally  been  mentioned,  yet  I 
shall  now  proceed  to  the  discussion  of  this  matter  distinctly  and  apart, 
and  shall  put  together  all  the  learning  that  occurs  to  me  concerning 
this  matter. 

In  the  highest  capital  offense,  namely,  high  treason,  there 
are  no  accessaries  neither  before  nor  after,  {ox  all  consenters,  [  613  ~\ 
aiders,  abettors,  and  knowing  receivers  and  comforters  of 
traitors,  are  all  principals,  as  hath  been  said,  3  H.  7.  10.  a.  Stamf. 
P.  C.  p.  40.  a.  Co.  P.  C.  jK  20. 

But  yet  as  to  the  course  of  proceeding,  it  hath  been  and  indeed 
ought  to  be  the  course,  that  those  who  did  actually  commit  the  very 
fact  of  treason,  should  be  first  tried  before  those  that  are  principals 
in  the  second  degree,  because  otherwise  this  inconvenience  might 
follow,  viz.  that  the  principals  in  the  second  degree  might  be  con- 
victed, and  yet  the  principals  in  the  first  degree  may  be  acquitted. 


613  HISTORIA  PLACITORUM  CORONA. 

which  would  be  absurd:  vide  SomerviWs  case(a)  before,  cap.  22. 
p.  23S.[1] 

In  cases  that  are  criminal,  but  not  capital,  as  in  trespass,  mayhem, 
ox  prsemunire,  there  are  no  accessaries,  for  all  the  accessaries  before, 
are  in  the  same  degree  as  principals,  Slamf.  Lib.  I.  cap.  48.  Sf  libros 
ibi;  and  accessaries  after,  by  receiving  the  offenders,  cannot  be  in 
law  under  any  penalties  as  accessaries,  unless  the  acts  of  parliament 
(hat  induce  those  penalties,  do  expressly  extend  to  receivers  or  com- 
forters, as  some  do. [2] 

Note  the  word  maintainers  in  the  statute  of  27  E.  3.  cap.  1.  and 
16  i?.  2.  cap.  5.  denotes  the  maintainers  of  the  oftense,  and  not  (as  it 
seems)  of  the  parties. 

It  remains,  therefore,  that  the  business  of  this  title  of  principal  and 
accessary  refers  only  to  felonies,  whether  by  the  common  law,  or  by 
act  of  parliament. 

As  to  felonies  by  act  of  parliament,  regularly  if  an  act  of  parliament 
enact  an  offense  to  be  felony,  tho  it  mentions  nothing  of  accessaries 
before  or  after,  yet  virtually,  and  consequentially  those  that  counsel 
or  command  the  offense  are  accessaries  before,  and  those  that  know- 
ingly receive  the  offender  are  accessaries  after,  as  in  the  case  of  rape 
made  felony  by  the  statute  of  fVestmijist.  2.  cap.  34.(6)  Stamf.  P. 
C.  Lib.  I.  cap.  47.  11  H.  4.  14.  in  case  of  multiplication,  Co. 
[  614  ]  P.  C.  cap.  20.  tho  Dy.  88.  makes  it  a  qusere. 

But  if  the  act  of  parliament  that  makes  the  felony,  in  ex- 
press terms  comprehend  accessaries  before,  and  make  no  mention  of 
accessaries  fz/^e/-,  namely,  receivers  or  comforters,  there  it  seems  there 
can  be  no  accessaries  after,  for  the  expression  of  procurers,  counsel- 
lers,  abettors,  all  which  import  accessaries  before,  make  it  evident, 
that  the  law  makers  did  not  intend  to  include  accessaries  after,  which 
is  an  offense  of  a  lower  degree  than  accessaries  before,  as  the  statute 
of  8  ^.  6  cap.  12.  for  stealing  of  records,  the  statute  of  33  H.  8.  cap.  8. 
for  witchcraft,  ^-c.   Stamford's  P.  C.  ubi  supra. 

It  is  true  my  lord  Coke,  P.  C.  cap.  19./;.  72,73.  denies  the  opinion 
of  Stamford,  and  affirmS',  that  tho  the  statute  of  8  H.  6.  cap.  12. 

(a)  1  And.  109.  But  it  was  ruled  in  that  case,  that  upon  that  branch  of  treason,  which 
relates  to  tlie  compassing  the  death  of  the  king,  there  is  no  need  that  tlie  principal  in  the 
first  degree,  {viz.  lie  who  undertook  to  do  the  act)  should  be  first  tried,  for  the  movers  or 
procurers  are  guilty  of  compassing  the  death  of  the  king,  altho  he  that  was  procured 
should  never  assent  thereto. 

(6)  2  Co.  Instit.  434. 

[1]  A  person  is  not  constructively  present  at  an  overt  act  of  treason,  unless  he  be 
aiding  and  abetting  at  the  fact,  or  ready  to  do  so  if  necessary.  U.  States  v.  Burr, 
4  Cranch,  492. 

[2]  See  Foster,  341  ;  Hawk.  P.  C.  h.  2.  c.  290;  3  Inst.  21 ;  Dalton,  c.  161;  Common. 
wealth  V.  Gillespie,  7  S.  Sf  K.  4G9 ;  U.  S.  v.  Morrow,  4  Wash.  C.  C.  R.  733 ;  U.  S.  v. 
Mills,  7  I'eters,  38;  Ward  v.  The  Slate,  G  Hill,  144;  Commonwralth  v.  Macomher, 
3  Mrtss.  3.56;  Wlntaker  v,  Enrrlish,  1  Bay.  15;  Commonwealth  \.  Barlow,  4:  Mass.  4XQ; 
State  V.  Arden,  1  Bay.  488;  Comm.  v.  Knapp,  9  I'icU.  497;  Chanet  v.  Parker,  1  Rep, 
Con.  Ct.  333.  The  crime  of  an  accessary  before  the  fact  to  murder  is  murder.  People 
V.  Mather,  4  Wendell,  229;  State  v.  Arden,  1  Bay,  488;  State  v.  Westjield,  I  Bailetj, 
132. 


HISTORIA  PLACITORUM  CORONA.  614 

mention  only  accessaries  before^  yet  virtually  and  consequentially 
accessaries  after  are  included,  as  well  as  in  felonies  at  common  law; 
but  he  neither  allegeth  any  reason  or  authority  for  that  opinion,  and 
therefore  the  authorities  being  equal,  the  greater  reason  seems  to  be 
with  Stamford's  opinion,  Expressum  facit  cessare  tacitiun,  and  no 
weight  can  be  laid  upon  the  statute  of  3  H.  7.  cap.  2.  for  that  in  ex- 
press terms  makes  accessaries  before  and  after  to  stand  as  principals. 

And  upon  the  same  reason  it  is,  that  many  of  these  acts  of  parha- 
ment  mentioned  before,  cap.  22.  p.  236.  that  make  certain  offenses, 
their  counsellers,  abettors,  and  procurers,  to  be  treason,  do  not  es:tend 
to  make  receivers  guilty  of  treason,  tho  if  the  act  had  been  general 
that  such  an  offense  shall  be  treason,  it  had  consequentially  made 
knowing  receivers  as  well  as  abettors  guilty  of  treason :  vide  Co.  P. 
C.  cap.  64.  p.  1 38. 

Tho  generally  an  act  of  parliament  creating  a  felony  renders  con- 
sequentially accessaries  before  and  after  within  the  same  penalty,  yet 
the  special  penning  of  the  act  of  parliament  in  such  cases  sometimes 
varies  the  case. 

The  statute  of  3  H.  7.  cap.  2.  for  taking  away  maidens,  S^c.  makes 
the  offender,  and  the  procuring  and  abetting,  yea,  and  wittingly  re- 
ceiving also,  to  be  all  equally  principal  felonies,  and  excluded  of  clergy. 

Again,  the  statute  of  27  E/iz.  cap.  2.  makes  the  coming 
in  of  a  Jesuit  treason,  the  receiving  or  relieving  of  him  felony,  [  615  ] 
the  contributing  of  money  to  his  relief  a.  prasmunire,  so  that 
acts  of  parliament  may  diversify  the  offenses  of  accessary  or  principal 
according  to  tlie  various  penning  thereof,  and  so  have  done  in  many 
cases. 

And  thus  much  as  to  accessaries  to  felonies  made  by  act  of  par- 
liament, which  being  general  directions  may  be  applicable  almost  to 
all  cases. 

I  come  to  consider  of  principals  and  accessaries  in  felony,  and  their 
differences  among  themselves,  and  with  relation  to  felonies  at  com- 
mon law. 

By  what  hath  been  formerly  delivered,  principals  are  in  two  kinds, 
principals  in  the  first  degree,  which  actually  commit  the  offense,  prin- 
cipals in  the  second  degree,  which  are  present,  aiding,  and  abetting 
of  the  fact  to  be  done.[3] 

[3]  The  presence  need  not  be  an  actual  standing  within  sight  or  hearing  of  the  act;  an 
active  co-operation  in  the  crime  at  the  time  of  its  commission  completes  the  felony.  As  if 
several  persons  set  out  together  or  in  small  parties  upon  one  common  design,  be  it  murder 
or  other  felony,  or  for  any  other  purpose  unlawful  in  itself,  and  each  takcth  the  part  as. 
signed  him,  some  to  commit  the  fact,  others  to  watch  at  proper  distances  and  stations  to 
prevent  a  surprise,  or  to  favour,  if  need  be,  the  escape  of  those  who  are  more  immediately 
engaged.  They  are  all,  provided  the  fact  be  committed,  in  the  eye  of  the  law,  present  at 
it;  for  it  was  a  common  cause  with  them,  each  man  operated  in  his  station  at  one  and 
the  same  instant  towards  the  same  common  end,  and  the  part  each  man  took  tended  to 
give  countenance,  encouragement,  and  protection  to  the  whole  gang,  and  to  insure  the 
success  of  their  common  enterprise.  Foster,  350. 

In  case  of  stealing  in  a  shop,  if  several  are  acting  in  concert,  some  in  the  shop  and 
some  out,  and  the  property  is  stolen  by  one  of  those  in  the  shop,  those  who  are  on  the 
outside  are  equally  guilty  as  principals  in  the  offence  of  stealing  in  a  shop.  Rex  v.  Go. 
gerleij,  Russ.  Sf  R.  C.  C.  343 ;  and  see  Rex  v.  Owen,  1  Ry.  S^  ^^C.  C.  9G ;  Rex  v.  Borth. 


615  HISTORIA  PLACITORUM  CORONA. 

So  that  regularly  no  man  can  be  a  principal  in  felony,  unless  he  be 
present,  unless  it  can  be  in  case  of  wilful  poisoning,  wherein  he  that 
layeth  or  infuseth  poison  with  intent  to  poison  any  person,  and  the 
person  intended,  or  any  other  take  it  in  the  absence  of  him  that  so 

wiclc,  1  Dou^l.  207.  So  if  one  keeps  guard  while  others  commit  the  act,  he  is  construe- 
tively  present,  and  liable  as  a  principal.  Slate  v.  Town,  Wright's  Ohio  i?.  75.  If  several 
act  in  concert  to  steal  a  man's  goods,  and  he  is  induced  by  fraud  to  trust  one  of  them  in 
presence  of  the  others,  with  the  possession  of  such  goods,  and  another  of  tliem  entices 
him  away,  that  the  man  who  has  the  goods  may  carry  them  off,  all  are  guilty  of  felony 
as  principals.  Rex  v.  Standley,  Russ.  Sf  R.  C.  C.  305.  See  State  v.  Coleman,  5  Porter,  32. 
All  persons  aiding  and  abetting  the  personating  a  seaman  are  principals;  the  oifence  is 
not  confined  to  tlie  person  only  who  personates  the  seaman.  Rex  v.  Potts,  Russ,  S(  R. 
C.  C.  353.    So  in  simony,  all  are  principals.  Baker  v.  Rogers,  Cro.  Eliz.  789.     • 

If  one  encourages  another  to  commit  suicide,  and  is  present  abetting  him  while  hedoes 
so,  such  person  is  guilty  of  murder  as  a  principal,  and  if  two  encourage  each  other  to 
murder  themselves  and  one  does  so,  the  other  being  present,  but  the  latter  fail  in  the 
attempt  upon  himself,  he  is  a  principal  in  the  murder  of  the  first;  but  if  it  be  uncertain 
■whether  the  deceased  really  killed  himself,  or  whether  he  came  to  his  death  by  accident 
before  the  moment  when  he  meant  to  destroy  himself,  it  will  not  be  murder  in  either. 
Rex  V.  Dyson,  Bvss.  Sf  R.  C.  C.  523;  and  see  Rex  v.  Russell,  Moody,  C.  C.  356;  Reg.  v. 
Alison,  9  C.  Sf  P.  418.    See  Com.  v.  Bowen,  13  Mass.  359. 

All  those  who  assemble  themselves  together  wiih  an  intent  even  to  commit  a  trespass, 
the  execution  whereof  causes  a  felony  to  be  committed;  and  continue  together  abetting 
one  another,  till  they  have  actually  put  their  design  into  execution:  and  also  all  those 
who  are  present  when  a  felony  is  committed,  and  abet  the  doing  of  it,  are  principuls. 
And  where  persons  combine  to  stand  by  one  another  in  a  breach  of  the  peace,  with  a 
general  resolution  to  resist  all  opposers ;  and  in  the  execution  of  their  design,  a  murder 
is  committed,  all  the  company  are  equally  principals  in  the  murder,  though  at  the  time 
of  the  fact,  some  of  them  were  at  such  a  distance  as  to  be  out  of  view.  Reg.  v.  Howell, 
9  Car.  Sf  P.  437.  See  also  Com.  v.  Daily,  4  Penn.  L.  J,  156.  Co7n.  v.  Hare,  4  Penn. 
L.  J.  259. 

To  constilute  the  offender  a  principal,  it  is  not  necssary  that  he  should  be  prelent 
during  the  whole  of  the  transaction,  it  is  sufficient  to  show  that  he  originally  assented  to 
the  felony,  and  was  present  aiding  and  abetting  when  the  offence  was  consummated, 
although  he  was  not  at  the  inception.  As  where  the  servants  of  A.  feloniously  removed 
goods  in  A.^s  warehouse,  from  one  part  of  it  to  another,  and  B.  several  hours  afterwards 
assisted  in  removing  the  goods  from  the  warehouse,  he  was  held  a  principal,  since  it  was 
a  continuing  transaction.  Rex  v.  Atwell,  2  East,  P.  C.  768.  , 

If  several  combine  to  forge  an  instrument,  and  each  executes  by  himself  a  distinct  part 
of  the  forgery,  and  they  are  not  together  when  the  instrument  is  completed,  they  are 
nevertheless  all  guilty  as  principals.  Rex  v.  Bingley,  Russ.  S(  R.  C.  C,  446;  sed  vide 
Rex  v.  Kelly,  Russ.  Sf  R.  C.  C.  421 ;  and  id.  332.  infra.  As  if  A.  counsel  B,  to  make  the 
paper,  C.  to  engrave  the  plate,  and  D.  to  fill  up  the  names  of  a  forged  note,  and  they  do 
Bo,  e;ich  without  knowing  that  the  others  are  employed  for  that  purpose.  B.  C.  and  D, 
may  be  indicted  for  the  forgery,  and  A.  as  an  accessary.  Rex  v.  Dale,  Moody,  C.  C.  307. 
For  if  several  make  distinct  parts  of  a  forged  instrument,  each  is  a  principal,  though  he 
do  not  know  by  whom  the  other  parts  are  executed,  and  though  il  is  finished  by  one  alone 
in  tlie  absence  of  the  others.  Rex  v.  Kirkwood,  Moody,  C.  C.  304. 

Persons  not  sufficiently  near  to  give  assistance,  are  not  principals.  Thus  where 
Brighton  uttered  a  forged  note  at  Portsmouth,  the  plan  was  concerted  between  him  and 
two  others,  to  whom  he  was  to  return  when  he  had  passed  the  note,  and  divide  the  pro- 
duce. The  three  had  before  been  concerned  in  uttering  another  forged  note,  but  at  tho 
time  this  note  was  uttering  in  Portsmouth,  the  other  two  stayed  at  Gosport.  The  jury 
found  all  three  guilty;  but  on  a  case  reserved  the  judges  were  clear  that  as  the  other  two 
were  not  present,  nor  suiliciently  near  to  assist,  they  could  not  be  deemed  principals,  and 
therefore  they  were  recommended  for  a  pardon.  Rex  v.  Soares,  Atkinson  and  Bughton, 
2  East,  P.  C.  974;  Russ.  t^  li-  C.  C.  25.  *'.  C.  and  see  R.  v.  Stewart  and  others,  Russ. 
Sf  R.  C.  C.  3G3;  Rex  v.  Badcock,  and  others,  Russ.  &  R.  C.  C.  249;  Rex  v.  Manners, 
7  C.  Sf  P.  801. 

Going  towards  a  place  where  a  felony  is  to  be  committed  in  order  to  assist  in  carrying 
off  the  property,  and  assisting  accordingly,  will  not  make  a  man  a  principal  if  he  were 


HISTORIA  PLACITORUM  CORONA.  615 

at  such  a  distance  at  the  time  of  the  felonious  taking  as  to  be  unable  to  assist  in  it.  Rex  y, 
Kellij,  Kuss.  Sf  R.  C.  C.  421. 

Where  H.  and  -S.  broke  open  a  warehouse,  and  stole  thereout  thirteen  firkins  of  but- 
ter,  &c.  whicli  they  carried  along  the  street  thirty  yards,  and  then  fetched  the  prisoner, 
who  was  apprized  of  the  robbery,  and  he  assisted  in  carrying  the  property  away,  he  was 
held  not  a  principal,  the  felony  being  complete  before  he  interfered.  Rex  v.  King,  Russ. 
^  R.  C.  C.  332.    Rex  v.  McMakin,  ib.  333.  note. 

If  a  wife,  by  her  husband's  order,  but  in  his  absence,  knowingly  utter  a  forged 
order  and  certificate  for  prize  money,  the  presumption  of  coercion  at  tlietirne  of  uttering 
does  not  arise,  as  the  husband  was  ab.-ent,  and  the  wife  may  be  convicted.  Rex  v.  Morris, 
Russ.  i^  R.  C.  C.  270.  It  is  not  sufficient  to  make  a  person  a  principal  in  uttering  a 
forged  note,  that  he  came  with  the  utterer  to  the  town  where  it  was  uttered,  went  out 
with  him  from  the  inn  at  which  they  had  put  up  a  little  while  before  he  uttered  it,  joined 
him  again  in  the  street  a  short  time  after  the  uttering,  and  at  some  little  distance  from 
tlie  place  of  uttering,  and  ran  away  when  the  utterer  was  apprehended.  Rex  v.  Davis, 
Russ.  S(  R.  C.  C.  113;  and  see  Rex  v.  Else,  id.  142. 

If  the  principal  were  insane  when  the  act  was  committed,  no  one  could  be  convicted 
as  aider  or  abettor.    R'g.  v.  Taylor,  8  Car.  Sf  P.  616. 

The  offender  must  also  be  participating  in  the  felonious  design,  or  at  least  the  offence 
must  be  within  the  compass  of  tlie  original  intention.  Rex  v.  Plumer,  Kel.  109,  117. 
The  act  must  also  be  the  result  of  tlie  confederacy,  and  if  several  are  out  for  the  purpose 
of  committing  a  felony,  and  upon  an  alarm  run  different  ways,  and  one  of  them  maim  a 
pursuer  to  avoid  being  taken,  the  others  are  not  to  be  considered  principals  in  such  act. 
Rex  v.  White,  Russ.  Sf  R.  C.  C.  99.  And  in  order  to  render  persons  liable  as  principals 
in  the  second  degree,  the  killing  or  other  act  must  be  in  pursuance  of  some  unlawful 
purpose  not  collateral  to  it.    1  East,  P.  C.  258.  Fost.  354,  355, 

Thus  where  a  number  of  persons  comijine  to  seize  with  force  and  violence  a  vessel, 
and  run  away  with  her,  and,  if  necessary,  to  kill  any  person  who  should  oppose  them  in 
the  design,  and  murder  ensues,  all  concerned  are  principals  in  such  murder.  1  Gallison, 
C.  C.  R.  624.  And  where  there  is  combined  resistance  to  officers,  or  a  combined  effort  to 
cause  tumults  and  affrays,  or  to  commit  felony,  and  death  takes  place,  all  are  principals. 
Commonwealth  v.  Daily,  4  Penn.  Law  J.  156.  Commonwealth  v.  Hare,  4  Penn.  Law  J.  259. 

If  A.  is  charged  with  the  offence,  and  B.  is  charged  with  aiding  and  abetting  hini,  it 
is  essential  to  make  out  the  charge  as  to  6.  that  B.  should  have  been  aware  of  yl.'s  inten- 
tion to  commit  murder.    Reg.  v.  Cruise,  8  C.  Sf  P.  541. 

But  all  persons  present  at  a  prize-fight,  having  gone  thither  for  the  purpose  of  seeing 
the  prize-fighters  strike  each  other,  were  principals  on  the  breach  of  the  peace.  Rex  v. 
Ferkius,  4  Car.  Sf  P.  537.    Rex  v.  Murphy,  6  C.  Sf  P.IO.  Rex  v.  Young,  8  C.  Sf  P.  645. 

The  indictment  against  principals  in  the  second  degree  may  in  general  charge  all  the 
parties  as  principals  in  the  first  degree,  or  as  being  present  aiding  and  abetting.  Fost. 
351.  ^  Hawk.  c.  23.  s.  76.  Rex  v.  Young,  3  T.  R.  105.  Rex  v.  Towle,  Ritss.  Sf  R. 
314.  Reg.  V.  Crisham,  1  C.  «Sc  Mar.  187.  But  there  are  exceptions  to  this  rule  as  to 
the  structure  of  indictments  under  particular  statutes  which  make  the  punishment  dit 
ferent,  and  it  is  best  not  to  charge  all  the  parties  as  principals  in  the  first  degree,  but  to 
charge  the  principals  in  the  second  degree  specially  as  aiders  and  abetters  when  there  is 
any  doubt  as  to  the  evidence  to  prove  them  all  equally  guilty;  for  if  one  were  altogether 
innocent,  having  repented  of  his  purpose,  and  left  tiie  ottiers  before  the  felony,  and  it  is 
uncertain  which  is  guilty,  both  roust  be  acquitted.    1  Leach,  387. 

Where  a  prisoner  was  convicted  upon  an  indictment  which  charged  him  with  a  rape 
as  a  principal  in  the  first  count,  and  as  an  aider  and  abettor  in  the  second,  it  was  holden 
that  the  conviction  upon  the  first  count  was  good.    Rex  v.  Folkes,  itoody,  C.  C.  354. 

A.  B.  and  C.  were  indicted  for  murder  in  the  first  count  as  principals  in  the  first 
degree,  in  the  second  count  A.  was  indicted  as  principal,  and  B.  and  C.  as  principals  ia 
the  second  degree;  the  first  count  was  ignored  as  to  B.  and  C.  and  a  true  bill  foimd  on 
the  second  count  against  all,  and  it  was  held  that  B.  and  C.  might  be  convicted  on  the 
second  count,  though  A.  was  acquitted.    Reg.  v.  Phelps,  1  C.  Sf  Mar.  180. 

All  who  are  present  aiding  and  abetting  him  who  inflicts  the  mortal  blow,  in  cases  of 
murder,  are  principals  and  criminals  in  the  highest  degree;  but  it  is  not  every  intermed- 
dling in  a  quarrel  or  aflfray  from  which  death  ensues,  that  constitutes  an  aiding  and  abet- 
ting to  the  murder.  If,  for  instance,  two  men  fight  on  a  former  grudge,  and  of  settled 
malice,  and  with  intent  to  kill,  of  which  the  spectators  are  ignorant,  and  they,  of  a  sud- 
den, take  sides  with  the  combatants  and  encourage  them  by  words,  and  deatli  ensue,  it 
will  not  be  murder  in  such  persons.  When  there  is  a  conibiriation  to  resist  all  oppositioa 
in  the  commission  of  an  unlawful  act,  in  the  execution  of  which  death  eusues,  all  are 


615  HISTORIA  PLACITORUM  CORONA. 

layeth  it,  yet  he  is  a  principal,  and  he  that  counselleth  or  abetteth 
him  so  to  do,  is  accessary  before.     Co.  P.  C.  cap.  64.  p.  138  [4] 

Who  shall  be  said  present,  aiding,  and  abetting  in  case  of  felony, 
hath  been  sufficiently  declared  in  cap.  34.  in  case  of  murder,  in  cap. 
48.  in  case  of  burglary,  in  cap.  46.  in  case  of  robbery,  and  need  not 
again  he-repeated. 

Accessaries  again  are  of  two  kinds,  accessaries  before  the  fact  com- 
mitted, and  accessaries  after. 

An  accessary  before,  is  he,  that  being  absent  at  the  time  of  the 
felony  committed,  doth  yet  procure,  counsel,  command, [5]  or  abet 
another  to  commit  a  felony,  and  it  is  an  offense  greater  than  the  acces- 
sary after;  and  therefore  in  many  cases  clergy  is  taken  away  from 
accessaries  before,  which  yet  is  not  taken  away  from  accessaries 
after,  as  in  petit  treason,  murder,  robbery,  and  wilful  burning,  by  4 
«§-'5  P.  4-  M.  cap.  4.[6] 

guilty  of  murder.  The  fact,  however,  must  appear  to  have  been  committed  strictly  in 
prosecution  of  the  purpose  for  which  the  party  was  assembled,  and  if  one  of  the  party  of 
his  own  head,  turn  aside  to  commit'  a  felony,  foreign  to  tiie  original  design,  his  compa- 
nions do  not  participate  in  his  guilt.  State  v.  King  et  al.  2  Rice^s  S.  C.  Dig.  106.  The 
distinction  between  principals  in  the  first  and  second  degree,  is  a  distinction  without  a 
difference,  and  therefore  it  need  not  be  made  in  the  indictment.  The  words  "  then  ancl 
there,"  in  the  concluding  part  of  a  charge  against  one  present  abetting  a  murder,  may 
be  rejected  as  surplusage,  or  referred  to  the  act  done,  which  caused  the  death,  and  not 
to  the  time  and  place  of  the  death.  State  v.  Fley  and  Robhill,  2  Rice,  S.  C.  Dig.  104. 
In  an  indictment  for  murder,  if  several  be  charged  as  principals,  one  as  principal  per- 
petrator, and  the  others  as  aiding  and  abetting,  it  is  not  material  which  of  them  be  charged 
as  principals  in  the  first  degree,  as  having  given  the  mortal  blow;  for  the  mortal  injury 
given  by  any  one  of  those  present,  is  in  contemplation  of  law,  the  injury  of  each  and 
every  of  them.  If  the  actual  perpetrator  of  a  murder  should  escape  by  flight  or  die, 
those  present  abetting  the  commission  of  the  crime,  may  be  indicted  as  principals,  and 
though  the  indictment  should  state  the  mortal  injury  was  committed  by  him  who  is  ab- 
sent or  dead;  yet,  if  it  be  substantially  alleged  that  those  who  were  indicted  were  present 
at  the  perpetration  of  tiie  crime,  and  did  kill  and  murder  the  deceased,  by  the  mortal  in- 
jury so  done,  by  the  actual  perpetrator,  it  shall  be  sufficient.  State  v.  Fley  and  Robhill, 
2  Rice,  S.  C.  Dig.  104.  If  sofne  of  the  persons  engaged  in  accomplishing  a  lawful  pur- 
pose commit  a  felony  in  presence  of  others  of  the  party,  but  without  their  participation, 
the  latter  are  neither  principals  nor  accessaries.   U.  States  v.  Jones,  3  Wash.  C,  C  223. 

[4]  4  Bl.  Com.  34.  Rex  v.  Giles,  Ry.  S^  M.  R.  166.  Rex  v.  Palmer,  1  T.  R.  96.  Rex 
1  Stewart,  R.  ^  R.  363.  Foster,  349.  R.  v.  Harley,  A  C.  S^  F.  369.  Rex  v.  Gorden, 
1  Leach,  15.  1  East,  F.  C.  352. 

[5]  State  V.  Mann,  1  Haywood,  N.  C.  Rep.  4. — meaning  of  the  word  "command'*  as 
here  used. 

[6]  Lord  Coke  and  Mr.  Justice  Foster  considered  the  word  command  as  compre- 
hending all  those  who  incite,  procure,  set  on,  or  stir  up  any  other  to  do  the  fict.  2  Fastis 
P.  C.  041.  But  there  arc  some  diversities:  As — 1.  When  the  principal  dotli  not  ac- 
complish the  fact  altogether  in  tlie  same  sort  as  it  was  beforeliand  agreed  between  hin^ 
and  the  accessary;  and,  therefore,  if  one  commands  another  to  lay  hold  upon  a  third 
person,  and  he  lays  hold  upon  him  and  robs  him,  the  person  commanding  is  not  acces- 
sary to  the  robbery,  for  his  comm:md  might  have  been  performed  without  any  robbery. 
Dalt.  c.  161,  J5.  36!) ;  and  see  1  Ch.  C.  L.  262. 

But  if  the  command  had  been  to  beat  him,  and  the  party  commanded  doth  kill  him, 
or  beat  liim  so  that  he  dieth  thereof,  the  person  commanding  shall  be  accessary  to  the 
murder;  for  it  is  a  hazard  in  beating  a  man  that  he  may  die  tiicreof.  Id.  Sed  query,  if 
this  does  not  mean  where  the  cominarul  was  to  beat  the  other  violently  ?  1  East,  P.  C.  257. 

2.  He  that  commandetli  or  counselleth  any  evil  or  unlawful  act  to  be  done  shall  be  ad- 
judged accessary  to  all  that  shall  ensue  upon  the  same  evil  act,  but  not  to  any  other  dis- 
tinct thing.    As  if  one  command  another  to  steal  a  horse,  and  he  stcalcth  an  ox ;  or  to 


HISTORIA  PLACITORUM  CORONA.  616 

-'  Those  offenses,  which  in  the  construction  of  law  are  sudden  and 
unpremeditated,  cannot  have  any  accessaries  before,  as  kilHng  a  man 
per  infortunium,  se  defendendo,  or  manslaughter.  And  therefore  if 
Jl.  be  indicted  of  murder,  and  B.  as  accessary  before,  if  the  jury  find 
.^.  guilty  only  of  manslaughter,  there  shall  be  no  inquiry  of  B.  but 

rob  a  man  by  the  highway  of  his  money,  and  he  robs  him  in  his  house  of  his  plate;  or 
to  burn  such  an  one's  house,  and  he  burns  the  house  of  another;  these  are  other  acts  and 
felonies  than  he  commanded  to  be  done,  and  therefore  he  shall  not  be  adjudged  acces- 
sary  to  them.     Id. 

3.  But  if  a  person  commit  the  same  felony  which  another  did  command  or  counsel  to 
be  done,  though  he  doth  it  another  time,  or  in  another  place,  or  in  another  sort  than  was 
commanded  or  counselled,  yet  here  such  person  commanding  or  counselling  shall  be  ac- 
cessary. As  if  he  doth  counsel  to  kill  a  man  by  poison,  and  he  kills  him  with  a  dagger; 
or  to  kill  him  by  the  highway,  and  he  kills  him  in  his  house;  or  to  kill  him  one  day, 
and  he  kills  him  on  another  day;  in  these  and  the  like  cases  he  shall  be  accessary  to  the 
murder,  {Id.)   for  the  means  used  are  immaterial,  so  that  the  criminal  object  be  effected. 

4.  Those  offences  which  in  the  construction  of  law  are  sudden  and  unpremeditated, 
cannot  have  any  accessaries  before.  As  killing  a  man  by  misadventure  in  his  own 
defence,  or  manslaughter,  for  in  such  case  there  can  be  no  procuring,  counselling,  com- 
manding or  abetting.     Ante  450,  fosl  616. 

5.  It  seems  to  be  generally  agreed,,  that  he  who  barely  conceals  a  felony  which  he 
knows  to  be  intended,  is  guilty  only  of  a  misprision  of  felony,  and  shall  not  be  adjudged 
an  accessary,  for  this  is  not  procuring,  counselling,  or  abetting.  2  HawJc.  c.  29,  s.  23. 
Thus,  words  that  seem  to  imply  mere  permission,  as  if  one  informs  another  that  he  is 
about  to  commit  a  felony,  and  the  latter  replies:  "You  may  do  your  pleasure  for  me," 
this  does  not  implicate  him  as  an  accessary,  but  it  only  fixes  him  with  the  guilt  of  a 
misprision.     Post  616  ;  2  Hawk.  c.  29,  s.  23-28. 

6.  Also,  if  a  man  counsel  or  command  another  to  kill  a  person,  and  before  he  hath 
killed  him,  he  who  counselled  or  commanded  it,  repents  and  countermands  it,  charging 
him  not  to  kill  him,  and  yet  after  he  doth  kill  him,  here  such  person  countermanding 
shall  not  be  adjudged  accessary  to  the  murder,  for,  generally,  the  law  adjudges  no  man 
accessary  to  a  felony  before  the  fact,  but  such  as  continue  in  that  mind  at  the  time  that 
the  felony  is  done  and  executed.     Dalt.  c.  161,  p.  369. 

7.  But  if  a  person  advise  a  woman  to  kill  her  child  as  soon  as  it  shall  be  born,  and 
she  kill  it  in  pursuance  of  such  advice;  he  is  an  accessary  to  the  murder,  though  at  the 
time  of  the  advice,  the  child  not  being  born,  no  murder  could  be  committed  of  it,  for  the 
influence  of  the  felonious  advice  continuing  till  the  child  was  born,  makes  the  adviser  as 
much  a  felon  as  if  he  had  given  his  advice  after  the  birth.     2  Hawk,  c.29,  s.  18. 

8.  If  the  crime  solicited  to  be  committed  be  not  perpetrated,  then  the  adviser  may  still 
be  indicted  for  a  misdemeanor  in  having  made  such  solicitation.  Rex  v.  Higgens,  2  East,  5. 

Accessaries  before  the  fact  are  in  general  punishable  in  the  same  manner  as  princi- 
pals, for  they  are  frequently  more  deeply  criminal  than  the  principal.  See  Dalt.  c.  161. 
But  there  are  several  legislative  provisions  pointing  out  the  punishment  in  different 
offences.  Thus,  accessaries  before  the  fact  to  murder,  are  punishable  with  death. 
9  Geo.  IV.  c.  31 .  s.  3.  So  are  accessaries  to  administering  poison,  and  attempts  to  drown, 
suffocate,  or  strangle,  and  to  maliciously  shooting  and  stabbing  with  intent  to  murderer 
maim,  &c.  9  Geo.  IV.  c.  31.  s.  11,  12.  So  are  accessaries  to  administering  poison  to  a 
-woman  to  procure  abortion,  witii  intent,  &.c.  9  Geo.  IV,  c.  31,  s.  13,  and  7  Will.  IV.  and 

I  Vict.  c.  85.  s.  6.  ante,  11.  13.  Accessaries  to  administering  poison  to  a  woman  not 
quick  with  child,  with  intent,  &c.  are  punishable  as  principals.  (Id.)  So  are  accessaries 
to  the  forcible  abduction  of  women  for  lucre.  9  Geo.  IV.  c.  31.  s.  19.  So  are  accessa- 
ries  io  child. stealing.  9  C^eo.  IV.  c.  31.  s.  21.  So  are  accessaries  to  bigamy.  9  Geo. 
IV.  c.  31.  s.  22.  And  accessaries  to  any  felony  punishable  under  stat.  9.  Geo.  IV.  c.  31, 
for  whom  no  punishment  is  otherwise  provided,  may  be  transported  for  not  more  than 
fourteen  nor  less  than  seven  years,  or  imprisoned  with  or  without  hard  labor  not  exceed- 
ing  three  years.   9  Geo.  IV.  c.  31.  s.  31.     See  Arch.  C.  L.  by  Jervis,  9  ed.  689. 

Accessaries  before  the  fact  to  felonies  within  the  statutes  7  &  8   Geo.  IV.  c.29.  s.  30. 

II  Geo.  IV.  S(  1  Will.  IV.  c.  66;  2  Will.  IV.  c.  34;  7  Will.  IV.  Sf  I  Vict.  c.  85.  s.  7; 
C.86.  s.  6;  c.  87.  s.  9;  c.  88.  s.  4;  c.  89.  s.  11  ;  and  also  c.  36.  s.  35.  as  to  offences  against 
the  post  office,  and  4  Sf  5  Vict.  c.  56.  s.  2.  respectively,  are  punishable  with  death  or 
otherwise  in  the  same  manner  as  principals  in  the  first  degree. 


616  HISTORIA  PLACITORUM  CORONA. 

he  shall  be  forthwith  discharged,  because  bare  homicide  is  always 
sudden:  for  if  it  were  premeditated,  it  had  been  murder,  and  not 
barely  homicide,  Bibilh'scase,{c)  but  there  may  be  an  accessary  after. 

Again,  the  exility  of  the  offense,  tho  it  be  felony,  yet  because  it  is 
not  capital,  excludeth  accessaries  before  or  after,  and  therefore  in 
petit  larciny  there  can  be  no  accessary,  Jlnne  Lassington's  case, 
P.  42  Eliz.  B.  R.{d)  and  this  is  also  the  reason  why  there  can  be  no 
accessary  neither  before  nor  after  in  manslaughter  per  infortunium 
or  se  defendendo,  because  there  is  no  judgment  of  death  in  that  case. 

That  which  makes  an  accessary  before  is  command,  counsel,  abet- 
ment, or  procurement  by  one  to  another  to  commit  a  felony,  when 
the  commander  or  counseller  is  absent  at  the  time  of  the  felony  com- 
mitted, for  if  he  be  present  he  is  principal. 

And  therefore  words  that  sound  in  bare  permission,  make  not  an 
accessary,  as  if  A.  says  he  will  kill  J.  S.  and  B.  says  you  may  do 
your  pleasure  for  me,  this  makes  not  B.  accessary.  21  H.  7.  36,  37 
Crompt.  41.  ^.[7] 

\i  Ji.  hire  B.  to  mingle  or  lay  poison  for  C.  B.  doth  it  according- 
ly, and  C.  is  poisoned,  B.  tho  absent,  is  principal,  A.  is  accessary ; 
but  if  ./^.  were  present  at  the  mingling  or  laying  of  the  poison,  tho 
both  were  absent  at  the  taking  of  it,  yet  both  are  principals,  for  they 
are  both  equally  acting  in  the  poisoning. 

But  if  ^.  buy  the  materials  of  the  poison,  knowing  and  consent- 
ing to  the  design,  and  deliver  them  to  B.  to  mingle  and  apply  it,  or 
lay  it  in  the  absence  of  tM.  here  it  seems  Ji,  is  only  accessary  before: 
quod  vide  Co.  P.  C.  cap.  1.  p.  50.  Frankli)i\s  case.(e) 

If  A.  command  or  counsel  B.  to  commit  felony  of  one  kind,  and 

B.  commits  a  felony  of  another  kind,  A.  is  not  accessary,  as 

r  617  2  if  «^-  command  B.  to  steal  a  plate,  and  B.  commits  burglary 

to  steal  the  plate,  t/?.  is  accessary  to  the  theft,  but  not  to  the 

burglary.   Co.  P.  C.  cap.  l.p.  51. 

If  A.  commands  B.  to  take  C.  and  B.  takes  C.  and  robs  him,  t/?,  is 
not  accessary  to  the  robbery. 

But  if  *d.  commands  B.  to  beat  C.  and  B.  beats  C.  so  that  he  dies, ./?. 
is  accessary,  because  it  may  be  a  probable  consequence  of  his  beat- 
ing, 3  E.  3.  Coron.  314.  Stamf  P.  C.  Lib.  I.  cap.  45.foL  41.  a.  the 
like  it  is  if  he  command  B.  to  rob  him,  and  in  robbing  him  B.  kills  him, 
t^.  is  accessary  to  the  murder.  Plowd.  Com.  475.  Crompt.  43.  6.[8] 

A.  commands  B.  to  burn  the  house  of  C.  B.  kills,  robs,  or  steals 
from  C.  A.  is  not  accessary,  for  it  is  an  ofttinse  of  another  kind;  so  if 
A.  commands  B.  to  steal  the  horse  of  C  and  he  steals  his  cow,  A.  is 
not  accessary.  Plowd.  Com.  475.  Saunder^s  case. 

(c)  4  Co.  Rep.  43  b.  (d)  Cro.  Eliz.  750.  (c)  State  Tr.  Vol.  I.  p.  329. 

[7]  The  procurement  need  not  be  direct,  it  is  sufficient  if  it  be  through  i\\G  agency  of 
anollier;  and  it  may  be  by  approbation  or  consent  to  an  expressed  felonious  design. 
Foster,  127.  R.  v.  Somerset,  1!)  Slate  Trials,  804.  R.  v.  Cooper,  5  C.  i^-  P.  535.  2  Hawk, 
c.  21),  s.  J 1.  I'eople  v.  Norton,  8  Cowen,  127,  But  bare  concealment  of  an  intention  on 
the  part  of  anottier  to  commit  a  felony,  will  not  make  the  person  so  concealing  an  acces- 
sary. 2  Hawk.  c.  29,  s.  23.  ■ 

[8]  4  Bl.  Com.  37.  R.  v.  Saunders,  Plotbden,  475. 


HISTORIA  PLACITORUM  CORONJi:.  617 

iBut  if  ./^.  command  B.  to  steal  generally  from  C.  then  he  is  acces- 
sary to  any  kind  of  theft  from  C.  tho  it  were  done  by  robbery,  for 
that  varies  the  offense  only  in  degree. 

t,^.  commands  B.  to  poison  C  B.  kills  him  with  a  sword,  yet ./?.  is 
accessary,  for  the  substance  of  the  thing  commanded  was  the  death, 
of  C.  and  the  difi'ering  in  the  manner  of  its  execution  from  the  com- 
mand doth  not  excuse  A.  from  being  accessary. [9] 

13ut  if  .y^.  command  B.  to  kill  C.  and  B.  by  mistake  kills  D.  or  else 
in  striking  at  C  kills  D.  but  misseth  C.  »/l.  is  not  accessary  to  the  mur- 
der of  Z>.  because  it  differs  in  the  person.  Co.  P.  C.  cap.  7.  p.  51. 
Plowd.  Com.  475.  Saunder^ s  case. 

A.  gets  B.  with  child,  and  before  the  birth  counsels  B.  to  kill  it, 
the  child  is  born,  B.  murders  it,  A.  is  accessary  to  the  murder,  yet 
at  the  time  of  the  counsel  given  the  child  was  not  in  rerum  nalurd. 
2  Eliz.  By.  186.  a. 

Jl.  lets  out  a  wild  beast,  or  employs  a  madman  to  kill  others, 
whereby  any  is  killed,  A.  is  principal  in  this  case,  tho  absent,  because 
the  instrument  cannot  be  a  principal.  Bait.  cap.  \QS.{f) 

A.  commands  B.  to  kill  C.  but  before  the  execution  there- 
of *^.  repents,  and  countermands  B.  and  yet  B.  proceeds  in  [  618  ] 
the  execution  thereof,  A.  is  not  accessary,  for  his  consent 
continues  not,  and  he  gave  timely  countermand  to  B.  Co.  P.  C.  cap.  7. 
p.  51.  Plowd.  Com.  474,  Sau7if/er's  case;  but  if  A.  had  repented,  yet 
if  B.  had  not  been  actually  countermanded  before  the  fact  committed, 
»/^.  had  been  accessary. [10] 

(/)  New  Edit.  p.  5^9. 

[9]  Foster,  369,  370.  R.  v.  Cooper,  5  C.  Sf  P.  535. 

[10]  Among  the  statutary  enactments  on  this  subject  in  the  United  States,  are  the 
following:  collected  in  Wh(/rton''s  American  Criminal  Law,  24-27. 

United  States. — Every  person  who  shall,  either  upon  the  land  or  the  seas,  know- 
ingly and  wittingly  aid  and  assist,  procure,  command,  counsel  or  advise,  any  persoa 
or  persons,  to  do  or  commit  any  murder  or  robbery,  or  other  piracy  aforesaid,  upon  the 
seas,  which  shall  affect  the  life  of  such  person,  and  such  person  or  persons  shall  there- 
upon do  or  commit  such  piracy  or  robbery,  then  all  and  every  such  person  so  as  aforesaid 
aidmg,  assisting,  procuring,  commanding,  counselling  or  advising  the  same,  either  upon 
the  land  or  the  sea,  shall  be,  and  they  are  hereby  declared,  deemed  and  adjudged  to  be, 
accessary  to  such  piracies  before  the  fact,  and  every  such  person,  being  thereof  convicted, 
shall  suffer  death.    Act  of  April  30,  1790.  s.  10. 

That  after  any  murder,  felony,  robbery,  or  other  piracy  whatsoever  aforesaid,  is  or 
shall  be  committed  by  any  pirate  or  robber,  every  person  who,  knowing  that  such  pirate 
or  robber  has  done  or  committed  any  such  pirac}'  or  robbery,  shall,  on  the  land  or  at 
sea,  receive,  entertain  or  conceal,  any  such  pirate  or  robber,  or  receive  or  take  into  his 
custody  any  ship,  vessel,  goods  or  chattels,  which  have  been,  by  any  such  pirate  or  rob- 
ber, piratically  and  feloniously  taken,  shall  be,  and  are  hereby  declared,  deemed  and 
adjudged,  to  be  accessary  to  such  piracy  or  robbery,  after  the  fact;  and  on  conviction 
thereof,  shall  be  imprisoned  not  exceeding  three  years,  and  fined  not  exceeding  five  hun- 
dred dollars.    Ibid.  sect.  11. 

Massachusetts. — Every  person,  who  shall  be  aiding  in  the  commission  of  any  offence, 
which  shall  be  a  felony,  either  at  common  law,  or  by  any  statute  now  made,  or  which 
shall  hereafter  be  made,  or  who  shall  be  accessary  thereto  before  the  fact,  by  counselling, 
hiring  or  otherwise  procuring  such  felony  to  be  committed,  shall  be  punished  in  the  same 
manner,  which  is  or  which  shall  be  prescribed  for  the  punishment  of  the  principal  felon. 
Rev.  Stat.  chap.  133.  sect.  1. 

Every  person,  who  shall  counsel,  hire,  or  otherwise  procure  any  offence  to  be  commit- 
VOL.  I. — 53 


618  HISTORIA  PLACITORUM  CORONiE. 

ted,  which  shall  be  a  felony,  either  at.  common  law,  or  by  any  statute  now  made,  or 
which  siiall  hereafter  be  made,  may  be  indicted  and  convicted  as  an  accessary  before  the 
fact,  either  with  the  principal  felon,  or  after  tlie  conviction  of  the  principal  felon,  or  he 
may  be  indicted  and  convicted  of  a  substantive  felony,  whether  the  principal  felon  shall 
or  shall  not  have  been  convicted,  or  shall  or  sliall  not  be  amenable  to  justice,  and  in  the 
last  mentioned  case,  may  be  punished  in  the  same  manner  as  if  convicted  of  being  an 
accesary  before  the  fact.    Ibid.  scct.  2. 

It  was  said  by  the  Supreme  Court  that  stat.  1784,  c.  65,  (from  which  the  above  section 
was  drawn,)  providing  that  if  any  person  shall  aid,  assist,  &c.  any  person  to  commit 
murder,  he  shall  be  considered  as  an  accessary  before  the  fact,  refers  to  a  person  not  pre- 
sent, aiding,  &c.  If  the  party  be  in  such  a  situation  as  to  be  able  to  afford  assistance  to 
the  principal,  although  not  literally  present,  he  will  be  a  principal.  Com.  v.  Knapp, 
9  I'ick.  496. 

Any  person,  charged  with  the  offence  mentioned  in  the  preceding  section,  may  b® 
indicted,  tried  and  punished  in  the  same  court  and  the  same  county,  where  the  principa 
felon  might  be  indicted  and  tried,  although  the  offence  of  counselling,  hiring,  or  pro- 
curing the  commission  of  such  felony  may  have  been  committed  on  tlie  high  seas,  or  on 
land,  either  within  or  without  the  limits  of  this  state.     Rev.  Stat.  chap.  133.  sect.  3. 

Every  person,  not  standing  in  the  relation  of  husband  or  wife,  parent  or  grand-parent, 
child  or  grand-child,  brother  or  sister,  by  consanguinity  or  affinity,  to  the  offender,  whq, 
after  the  commission  of  any  felony,  shall  harbour,  conceal,  maintain,  or  assist  any  prin- 
cipal felon,  or  accessary  before  the  fact,  or  shall  give  such  offender  any  other  aid,  know- 
ing that  he  had  committed  a  felony,  or  had  been  accessary  thereto  before  the  fact,  with 
intent  that  he  shall  avoid  or  escape  from  detection,  arrest,  trial  or  punishment,  shall  be 
deemed  accessary  after  the  fact,  and  shall  be  punished  by  imprisonment  in  the  state  pri- 
son, not  more  than  seven  years,  or  in  the  county  jail,  not  more  than  three  years,  or  by 
fine  not  exceeding  one  thousand  dollars.    Ibid.  sect.  4. 

Every  person,  who  shall  become  an  accessary  after  the  fact,  to  any  felony  either  at 
common  law,  or  by  any  statute  now  made,  or  which  shall  hereafter  be  made,  may  be 
indicted,  convicted,  and  punished,  whether  the  principal  felon  shall  or  shall  not  have  been 
previously  convicted,  or  shall  or  shall  not  be  amenable  to  justice,  by  any  court  having 
jurisdiction  to  try  the  principal  felon,  and  either  in  the  county  where  such  person  shall 
have  become  an  accessary,  or  in  the  county  where  such  principal  felony  shall  have  been 
committed.  Jbid.  sect.  5. 

New  York. — Every  person,  who  shall  be  a  principal  in  the  second  degree,  in  the  com- 
mission of  any  felony,  or  who  shall  be  an  accessary  to  a  murder,  before  the  fact,  and  every 
person  who  shall  be  an  accessary  to  any  felony,  before  the  fact,  shall,  upon  conviction,  be 
punished  in  the  same  manner  herein  prescribed,  with  respect  to  principals  in  the  first  de- 
gree.   2  R.  Stat.  698,  sect.  6,  1st  Edition. 

Every  person,  who  shall  be  convicted  of  having  concealed  any  offender  after  the  com- 
mission of  any  felony,  or  of  having  given  such  offender  any  other  aid,  knowing  that  he 
has  committed  a  felony,  with  intent  and  in  order  that  he  may  avoid,  or  escape  from, 
arrest  or  trial,  or  conviction,  or  punishment,  and  no  others,  shall  be  deemed  an  accessarji' 
after  thp  fact,  and  upon  conviction  shall  be  punished  by  imprisonment  in  a  state  prison, 
not  exceeding  five  years,  or  in  a  county  jail  not  exceeding  one  year,  or  by  fine  not  ei- 
ceeding  five  hundred  dollars,  or  by  both  such  fine  and  imprisonment.    Ihid.  sect.  7. 

An  indictment  against  an  accessary  to  any  felony  may  be  found  in  the  county  where 
the  offence  of  such  accessary  shall  have  been  committed,  notwithstanding  the  principal 
offence  was  committed  in  another  county;  and  the  like  proceedings  shall  be  had  thereon 
in  all  respects,  as  if  the  principal  offence  had  been  committed  in  the  same  county. 
Ibid,  727,  sect.  48. 

An  accessary,  before  or  after  the  fact,  may  be  indicted,  tried,  convicted  and  punished, 
notwithstanding  the  principal  felon  may  have  been  pardoned,  or  otherwise  discharged, 
after  his  conviction.     Ibid,  sect.  40. 

Every  person  who  shall  be  convicted  of  having  been  an  accessary  after  the  fact  to  any 
kidnapping  or  confinement,  herein  before  prohihited,  shall  be  punished  by  imprisonment 
in  a  state  prison,  not  exceeding  six  years,  or  in  a  county  jail  not  exceeding  one  year,  or 
by  a  fine  not  exceding  five  hundred  dollars,  or  by  ,both  such  fine  and  imprisonment 
Ibid.  GG5,  sect. '31. 

Pennsylvania. — Where  any  murder  or  felony  hath  been,  or  hereafter  shall  be  com- 
mitted in  one  county  of  this  province,  and  one  or  more  persons  shall  be  accessary  or 


HIS^TORIA  PLACITORUM  CORONA.  618 

accessaries  to  any  such  murder  or  felony  in  another  coun'y,  then  an  indictment  found 
or  talsen  against  such  accessary  or  accessaries,  upon  tlie  circumstances  of  such  matter, 
before  justices  of  the  peace,  or  otiier  justices  or  commissioners,  to  inquire  of  felonies  in 
the  county  where  sucli  offences  of,  accessary  or  accessaries,  in  any  manner,  have  been 
or  shall  be  committed  or  done,  shall  be  as  good  and  effectual  in  law  as  if  the  said  prin- 
cipal  offence  had  been  committed  or  done  within  the  same  county,  where  the  indictment 
against  such  accessary  hath  been  or  shall  be  found.  Act  of  3[st  May,  1118,  sect.  22; 
1  Smith,  405;  It/i  ed.  Furdon,  1)35. 

The  justices  of  the  said  Supreme  Court,  or  two  of  them,  upon  suit  to  them  made, 
shall  write  to  the  keepers  of  the  records,  where  such  principal  is  or  shall  hereafter  be 
attainted  or  convicted,  to  certify  them  whether  such  principal  be  attainted,  convicted 
or  otherwise  discharged  of  such  principal  felony;  who,  upon  such  writing  to  them  or 
any  of  them  directed,  shall  make  sufficient  certificate  in  writing,  under  their  seal  or 
seals,  to  the  said  justices,  whether  such  principal  be  attainted,  convicted,  or  otherwise 
discharged  or  not.  And  after  they  who  so  have  the  custody  of  records,  do  certify  that 
such  principal  is  attainted,  convicted  or  otherwise  discharged  of  such  offence  by  the 
law,  then  the  justices  of  gaol  delivery  or  of  oyer  and  terminer  shall  proceed  upon  every 
such  accessary  in  I  he  county  where  he  or  they  became  accessary,  in  such  manner  and 
form  as  if  both  the  said  principal  offence  and  accessary  had  been  committed  and  done 
in  the  same  county,  wiiere  the  offence  or  accessary  was  or  shall  be  committed  or  done. 
And  every  such  accessary  and  other  offenders  as  above  expressed,  shall  answer  upon 
their  airaignments,  and  receive  such  trial,  judgment,  order  and  execution,  and  suffer 
such  forfeiture,  pains  and  penalties,  as  is  used  in  other  cases  of  felony,  and  as  the  statute 
made  in  the  second  and  third  years  of  the  reign  of  king  Edward  the  Sixth,  (chap.  24,) 
entitled,  "An  act  for  the  trial  of  murders  and  felonies  committed  in  several  counties," 
doth  direct  in  such  cases;  which  statute  shall  be  observed  in  this  province,  any  law  or 
usage  to  the  contrary  notwithstanding.     Ibid.  sect.  23. 

Pivery  person  convicted  of  bigamy,  or  being  an  accessary  afler  the  fact,  in  any 
felony,  or  of  receiving  stolen  goods,  knowing  them  to  have  been  stolen,  or  of  any  other 
offence  not  capital,  for  which,  by  the  laws  in  force,  before  the  act,  entitled,  "An  act  lo 
amend  the  penal  laws  of  this  state,"  burning  in  the  hand,  cutting  off  the  ears,  nailing  the 
ear  or  ears  to  the  pillory,  placing  in  and  upon  the  pillory,  whipping  or  imprisonment  for 
life,  is  or  may  be  inflicted,  shall,  instead  of  such  parts  of  the  punishment,  be  fined  and 
sentenced  to  undergo  in  the  like  manner,  and  be  confined,  kept  to  hard  labour,  fed  and 
clothed  as  is  hereinafter  directed,  for  any  term  not  exceeding  two  years,  which  the 
court  before  whom  such  conviction  shall  be,  may  and  shall,  in  their  discretion,  think 
adapted  to  the  nature  and  heinousness  of  the  offence.  Act  5th  April,  171^0;  2  Dallas, 
801 ;  2  Smith,  531 ;  1th  ed.  Fur.  938,  sect.  4. 

Virginia. — An  accessary  to  a  murder  or  a  felony  committed,  shall  be  examined  by  the 
court  of  that  county  or  corporation,  and  tried  by  the  court  in  that  district  where  he  be- 
came accessary,  and  shall  answer  upon  his  arraignment,  and  receive  such  judgments, 
order,  execution,  pains  and  penalties  as  are  used  in  other  cases  of  murder  and  felony. 
R.  L.  vol.  i.  104. 

If  any  be  accused  of  an  act  done  as  principal,  they  that  be  accused  as  accessary  shall 
be  attached  also,  and  safely  kept  in  custody  until  the  principal  be  attainted  or  delivered. 
R.  L.  vol.  i.  126. 

Persons  knowingly  harbouring  horse-stealers,  or  receiving  from  them  stolen  horses, 
are  to  be  deemed  and  punished  as  accessaries.  And  if  the  principal  felon  cannot  be 
taken  so  as  to  be  prosecuted  and  convicted  of  such  offence,  nevertheless  the  acces- 
sary may  be  punished  as  for  a  misdemeanor,  although  the  principal  felon  be  not  before 
convicted  of  the  felony,  which  shall  exempt  the  ofi'cnder  from  being  punished  as  ac- 
cessary, if  the  principal  offender  shall  afterwards  be  taken  and  convicted.  li.  L. 
vol.  i.  179. 

If  any  principal  offenders  shall  be  convicted  of  any  felony,  or  shall  stand  mute,  or 
shall  peremptorily  challenge  above  twenty  persons  returned  to  be  of  the  jury,  it  shall 
be  lawful  to  proceed  against  any  accessary  either  before  or  after  the  fact,  in  the  same 
manner  as  if  the  principal  felon  had  been  attainted  thereof,  notwithstanding  such  prin- 
cipal shall  be  admitted  to  the  benefit  of  his  clergy,  pardoned  or  otherwise  delivered  before 
his  attainder;  such  accessary  to  suffer  the  same  punishment  as  the  principal,  if  he  had 
been  attainted.     R.  L.  vol,  i.  p.  20G. 


618  HISTORIA  PLACITORUM  CORONiE. 

CHAPTER  LVI. 

OP  ACCESSARIES  AFTER  THE  FACT. 

This  kind  of  accessary  after  the  fact  is,  where  a  person  knowing  the 
felony  to  be  committed  by  another,  receives,  relieves,  comforts,  or 
assists  the  felon. [1]  . 

This,  as  hath  been  siaid,  .holds  place  only  in  felonies,  and  in  those 
felonies,  where  by  the  law  judgment  of  death  regularly  ought  to  ensue, 
and  therefore  there  is  no  accessary  in  petit  larciny,  homicide  joer  in- 
fortunium, or  homicide  se  defendendo.   15  E.  3.  Coron.  116. 

I  shall  consider,  1.  What  shall  not  be  a  receiving  or  relieving  to 
make  an  accessary  after;  and  2.  What  shall  be  such  a  receiving  or 
relieving  to  make  an  accessary  after. 

If  A.  knows  that  B.  hath  committed  a  felony,  but  doth  not  disco- 
ver it,  this  doth  not  make  ./^.  an  accessary  after,  but  it  is  misprision 
of  felony,  for  which  Ji.  may  be  indicted,  and  upon  his  conviction  fined 
and  imprisoned. 

If  eA?.  sees  B.  commit  a  felony,  but  consents  not,  nor  yet  takes  care 
to  apprehend  him,  or  to  levy  hue  and  cry  after  him;  or  upon  hue  and 
cry  levied  doth  not  pursue  him,  this  is  a  neglect  punishable  by  fine 
and  imprisonment,  but  it  doth  not  make  ji.  an  accessary  after.  S  E. 
2.  Coron.  395.  3  E.  3.  Coron.  293.  Stamf.  P.  C.  Lib.  I. 
[  619  ]  cap,  45.  f  40.  b.  14.  H.  7.  31.  b.  and  the  contrary  opinion  of 
some  old  books  in  this  case  is  therefore  rejected. 

If  B.  commit  a  felony,  and  come  to  the  house  of  td.  before  he  be 
arrested,  and  A.  suff'er  him  to  escape  without  arrest,  knowing  him 
to  have  committed  a  felony,  this  doth  not  make  »^.  accessary;  but  if 
he  takes  money  of  B.  to  suffer  him  to  escape,  this  makes  him  acces- 
sary, 9  H.  4.  1.  and  so  it  is  if  J2.  shut  the  fore  door  of  his  house, 
whereby  the  pursuers  are  deceived,  and  the  felon  hath  opportunity 


[1]  Generally  any  assistance  whatsoever  given  to  one  known  to  be  a  felon,  in  order  to  hin- 
der his  being  approliended  or  tried,  or  suffering  the  punishment  to  which  he  is  condemned, 
is  sufficient  to  bring  a  man  within  tiiis  description,  and  makes  him  accessary  to  the 
felony:  as  where  one  assists  him  with  a  horse  to  ride  away  with,  or  with  money  or  vic- 
tuals to  support  him  in  his  escape.  2  Hawk.  c.  29.  s.  26.  Also,  it  seems  to  be  settled  that 
whosoever  rescues  a  felon  from  an  arrest  for  the  felony,  or  voluntarily  suffers  him  to 
escape,  is  an  accessary  to  the  felony.  2  Hawk,  c,  29.  s.  27.  It  seems  agreed,  says  Haw- 
kiiis,  that  the  law  hath  such  a  regard  to  that  duty,  love  and  tenderness  which  a  wife 
owes  to  her  husband,  as  not  to  make  her  an  accessary  to  felony  by  any  receipt  given  to 
her  husband.  Yet,  if  she  be  any  way  guilty  of  procuring  her  husband  to  commit  it,  it 
seems  to  make  her  an  accessary  before  the  fact,  in  tlie  same  manner  as  if  she  had  been 
sole.  Also,  it  seems  agreed  that  no  other  relation  besides  tliat  of  a  wife  to  her  husband, 
will  exempt  the  receiver  of  a  felon  from  being  an  accessary  to  the  felony;  from  whence 
it  follows,  that  if  a  master  receive  a  servant  or  a  servant  a  master,  or  a  brother  a  brother, 
or  even  a  husband  a  wife,  they  arc  accessaries  in  the  same  manner  as  if  they  liad  been 
mere  strangers  to  one  another.  2  IJawk.  c.  29.  s.  3  [. 

Where  goods  are  feloniously  taken  by  a  servant  in  his  master's  absence,  and  the  mas- 
ter afterwards  assists  in  secreting  theni,  he  is  an  accessary  only,  though  he  directed  the 
original  taking.    Norton  v.  People,  8  Co/Oj.  137. 


HISTORIA  PLACITORUM  CORONA.  619 

to  escape,  this  makes  A.  accessary;  for  here  is  not  a  bare  omission, 
but  an  act  done  by  A.  to  accommodate  his  escape,  8  E.  2.  Coron.  427. 

*/i.  hath  his  goods  stolen  by  B.  \( */9.  receives  his  goods  again  sim- 
ply without  any  contract  to  favour  him  in  his  prosecution,  or  to 
forbear  prosecution,  this  is  lawful;  but  if  he  receives  them  upoa 
agreement  not  to  prosecute,  or  to  prosecute  faintly,  this  is  theft-bote, 
punishable  by  imprisonment  and  ransom, («)  but  yet  it  makes  not  t'?. 
an  accessary  1 42  Assiz.  5.  b.  3  E.  3.  Coron.  353.  Slamf.  P.  C.f.  40. 
a.  but  if  he  take  money  of  B.  to  favour  him,  whereby  he  escapes, 
this  makes  him  accessary.  Dalt.  263.{b)  Crompt.  41.  b. 

t/i.  hath  his  goods  stolen  by  B.  who  sells  them  to  C.  upon  a  just 
value,  tho  C.  know  them  to  be  stolen,  this  makes  not  C.  accessary, 
unless  he  receive  the  felon.    Da/L  cap.  108./?.  288. (c) 

But  by  some  opinions,  if  he  buy  them  at  an  under  value,  it  makes 
him  accessary,  per  Crompt.  43.  b.  and  Sir  Nlch.  Hyde,  Dalt.  iihi 
supra;  but  it  seems  this  makes  not  an  accessary,  for  if  there  be  any 
odds,  lie  that  gives  more,  benefits  the  felon  more  than  him  that  gives 
less  than  the  value,  but  it  may  be  a  misdemeanor  punishable  by  fine 
and  imprisonment,  and  the  buying  at  an  under  value  is  a  presumptive 
evidence,  that  he  knew  they  were  stole,  but  makes  him  not  accessary. 

If  Ji.  hath  his  goods  stolen  by  B.  and  C.  knowing  they  were 
stolen,  receives  them,  this  simply  of  itself  makes  not  an  accessary, 
and  therefore  it  hath  been  often  ruled, (^)  that  to  say,  J.  S.  hath  re- 
ceived stolen  goods  knoiving  them  to  be  stolen,  is  not  ac- 
tionable, because  it  imports  not  felony,  but  only  a  trespass  ["620  ~\ 
or  misdemeanor,  punishable  by  fine  and  imprisonment, (e) 
for  the  indictment  of  an  accessary  after,  is  that  he  received  and 
maintained  the  thief,  not  the  goods.{f)[2] 

(a)  Vide  antea,  p.  546.  Sf  notas  ibid.  (6)  New  Edit.  p.  531. 

(c)  New  Edit.  ibid.  (d)  Dawsori's  case,  Yelv.  4. 

(e)  By  3  &  4  W.  ^  M.  cap.  9.  "Receivers  of  stolen  goods,  knowing  them  to  be  stolen, 
are  to  be  deemed  accessaries  after  the  fact,  and  suffer  as  such;"  but  because  these  re- 
ceivers often  concealed  the  principal  felons,  and  thereby  escaped  being  punished  as  acces- 
saries; therefore  by  1  Ann.  cap.  9.  "Whosoever  shall  buy  or  receive  stolen  goods  know- 
ing  them  to  be  stolen,  may  be  prosecuted  for  a  misdemeanor,  and  punished  by  fine  and 
imprisonment,  though  the  principal  felon  be  not  convicted;"  and  this  shall  exempt  them 
from  being  punished  as  accessaries,  if  the  principal  shall  afterwards  be  convicted. 

(/)  But  by  5  Ann.  cap.  31.  "  If  any  person  shall  receive  or  buy  knowingly  any  stolen 
goods,  or  knowingly  harbour  or  conceal  any  felon,  lie  shall  be  taken  as  accessary  to  the 
felon,  and  shall  suffer  as  a  felon:"  this  statute  does  not  take  away  the  benefit  of  clergy; 
but  by  4  Geo.  I.  cap.  11.  such  person  may  be  transported  for  fourteen  years. 

[2]  The  7  &  8  Geo.  IV.  c.  29.  is  novy  the  only  statute  in  force,  affecting  receivers  of 
stolen  goods  in  general.  All  the  statutes  prior  to  that  statute  are  repealed,  and  the  only 
other  acts  in  force  on  this  offence  are  the  2  Geo.  III.  c.  28.  relating  to  receiving  stoleo 
goods,  &.C.  on  the  river  Thames^  and  the  1  &  2  Geo.  ly.  c.  75.  relating  to  anchors,  cables, 
shipping,  &c. 

Where  two  receivers  are  charged  in  the  same  indictment  with  separate  and  distinct 
acts  of  receiving,  it  is  too  late  after  verdict,  to  object  that  they  should  have  been  indicted 
separately.  Reg.  v.  Hays,  2  M.  Sf  Rob.  156.  Where  a  person  jinowing  goods  to  have  been 
stolen,  directs  his  servant  to  receive  them,  and  the  servant  also  knowing  the?n  to  be 
stolen,  does  so,  they  are  jointly  indictable.  Reg.  v.  Parr,  2  M.  Sf  Rob.  346.  Three  per- 
sons were  charged  with  a  larceny,  and  two  others  as  accessaries,  in  separately  receiving 
portions  of  the  stolen  goods.     The  indictment  also  contained  two  other  counts,  one  of 


620  mSTORIA  PLACITORUM  CORONiE. 

But  yet  it  seems  to  me,  that  if  B.  had  come  himself  to  C.  and 
delivered  him  the  goods  to  keep  for  him,  C.  knowing  that  they  were 
stolen,  and  that  B.  stole  them,  or  if  C.  receives  the  goods  to  facilitate 
the  escape  of  B.  or  if  C.  knowingly  receives  them  upon  agreement 
to  furnish  B.  with  supplies  out  of  them,  and  accordingly  supplies 
him,  this  makes  C.  accessary  ;(_ij-)  and  with  this  seems  to  agree  the 
preamble  of  the  statute  of  2  <§•  3  E.  6.  cap.  24.  Crompt.  41.  b.  for  it 
is  relieving  and  comforting. 

But  the  bare  receiving  of  stolen  goods,  knowing  them  to  be  stolen, 
makes  not  an  accessary;  for  he  may  receive  them  to  keep  for  the 
true  owner,  or  till  they  are  recovered  or  restored  by  law;  and  so  it 
seems  are  the  books  to  be  intended  of  27  Assiz.  69.  25  E.  3.  39., (A) 
9  H.  4.  1.  a. 

If  a  felon  be  in  prison,  he  that  relieves  him  with  necessary  meat, 
drink,  or  clothes  for  the  sustentation  of  life,  is  not  accessary. 

So  if  he  be  bailed  out  till  the  next,  sessions,  4'C.  it  is  law- 
[^  621  ]  ful  to  relieve  and  maintain  him,  for  he  is  quodammodo  in 
custody,  and  is  under  a  certainty  of  coming  to  his  trial. 
Crompt.  42.  b.  Ball.  p.  2S6.{i) 

And  therefore  it  is  not  treason  thus  to  relieve  a  traitor,  while  he  is 
in  custody  or  under  bail,  and  therefore  the  statute  of  27  E/is.  cap.  2. 
that  makes  it  felony  to  relieve  a  Jesuit,  hath  yet  this  qualification, 
being  at  liberty  and  out  of  hold. 

But  if  a  felon  be  in  gaol,  for  a  man  to  convey  instruments  to  him 

{g)  But  because  this  was  difficult  to  prove,  the  confederates  of  snch  thiev^es  frequently 
disposing-  of  suck  goods  to  the  owners  for  a  reward,  under  the  notion  of  helping  them 
again  to  their  stolen  goods,  it  is  provided  by  4  Geo.  I.  cap.  11.  "That  whosoever  shall 
take  a  reward  under  tiie  pretence  of  helping  any  one  to  stolen  goods,  shall  suffer  as  a 
felon,  as  if  he  himself  had  stolen  the  said  goods,  unless  he  cause  such  felon  to  be  appre- 
hended and  brought  to  trial,  and  give  evidence  against  him;"  upon  this  clause  the  famous 

Jonathan  Wild  was  convicted  and  executed.  10  Geo.  1. See  statute  6  Geo.  1.  ch.  23. 

for  pretending  to  help  one  to  stolen  goods.  Receivers  of  linen  goods  stolen  from  the 
bleaching  grounds,  are  by  the  statute  18  Geo.  II.  declared  felons,  without  benefit  of  clergy. 

{h)  In  the  last  edition  of  the  year-books,  which  is  in  this  place  inispaged,  it  is  25  E. 
3.  82.  b. 

(»)  Neio  Edit.  p.  530. 

them  charging  each  of  the  receivers  separately  with  a  substantive  felony,  in  separately 
receiving  a  portion  of  the  stolen  goods.  The  principals  were  acquitted,  but  the  receivers 
were  convicted  on  tlie  'last  two  counts  of  tlie  indictment.  Reg.  v.  Pulham,  9  Car.  Sf 
P.  280.  A  lad  stole  a  brass  weight  from  his  master,  and  after  it  had  been  taken  from 
him  in  his  master's  presence,  it  was  restored  to  him  again  with  his  master's  consent,  in 
order  that  he  might  sell  it  to  a  man,  to  whom  he  had  been  in  the  luibit  of  selling  similar 
articles,  which  he  had  stolen  before.  The  lad  did  sell  it  to  the  man,  and  the  man  being 
indicted  for  receiving  it  of  an  evil  disposed  person,  well  knowing  it  to  have  been  stolen, 
was  convicted,  and  sentenced  to  be  transported  for  seven  years.  Peg.  v.  Lyons.  I  C.  Sf 
Mar.  217.  Where  six  .£100  notes  were  stolen,  and  the  ])arty  was  indicted  for  receiving 
tlicm,  it  appeared  tliat  the  notes  had  been  changed  by  tiic  thief  for  £20  notes,  which 
latter  notes  had  been  received  by  the  accused  ;  it  was  held,  that  he  could  not  be  convicted 
on  tlie  indictment,  as  he  did  not  receive  the  notes  which  were  stolen.  Ilex  v.  Wulkeley, 
4  C.  c^-  P.  132. 

A  person  may  be  indicted  for  receiving  stolen  property,  if  it  remain  the  same  in  sub- 
stance, though  the  name  be  changed,  and  therefore  a  principal  may  be  indicted  for  steal- 
ing'a  live  sheep,  and  tiie  accessary  with  receiving  twenty  pounds  of  mutton.  R'-x  v. 
Cowell,  2  East,  P.  C.  781 ;  and  sec  R.  v.  Puckering,  R.  c^  M.  C.  C.  242. 


HISTORIA  PLACITOROI  CORONA.  621 

to  break  prison  to  make  an  escape,  or  to  bribe  tbe  gaoler  to  let  him. 
escape  makes  the  party  an  accessary,  for  tho  common  humanity 
allows  every  man  to  aflord  them  necessary  relief,  yet  common  jus- 
tice prohibits  all  men  unlawful  attempts  to  cause  their  escapes. 

If  A.  speak  or  write  in  favour  of  a  prisoner  for  his  favour  and 
deliverance,  this  makes  him  not  an  accessary.  26  Assiz.  47.[3] 

To  instruct  a  felon  to  read  thereby  to  save  him  by  his  clergy  makes 
not  an  accessary.    M.  7  R.  2.,{k)  Co.  P.  C.  cap.  64.  p.  139. 

If  A.  be  cominitted  for  felony,  and  B.  an  attorney  advise  the 
friends  of./?,  to  write  to  the  witnesses  not  to  appear  against  him,  who 
writes  accordingly,  this  makes  neither  B.  nor  the  friends  accessary, 
but  is  a  misdemeanor  punishable  by  fine  and  imprisonment.  Co.  P. 
C.  iibi  supra. 

A  feme  covert  cannot  be  an  accessary  for  the  receipt  of  her  hus- 
band, for  she  ought  not  to  discover  him. 

But  the  husband  may  be  an  accessary  for  the  receipt  of  his  \vife. 
Stamf.  P.  C.  Lib.  I.  cap.  \9.fol.  26.  a. 

If  the  wife  alone,  her  husband  being  ignorant,  do  knowingly  re- 
ceive B.  a  felon,  the  wife  is  accessary  and  not  the  husband.  \5  E.  2. 
Coron.  383. 

But  if  the  husband  and  wife  both  receive  a  felon  knowingly,  it 
shall  be  judged  only  the  act  of  the  husband,  and  the  wife  acquitted. 
M.  37  E.  3^ Rot.  34.  in  dors.  Rex  Coram  Rege.{l) 

To  make  an  accessary  to  felony  there  must  be  a  felony  f  622  *] 
committed  by  him,  to  whom  he  is  accessary. 

i^.  gives  B.  a  mortal  stroke,  C.  receives  or  relieves  A.  or  helps  him 
to  escape,  and  then  B.  dies,  C,  shall  not  be  an  accessary  to  the  felony, 
because  when  he  received  him  no  felony  was  done. [4] 

(it)  Rot.  30.  Rex  Cant. 

{1}  This  was  the  case  of  Richard  Day  and  Margery  his  wife,  (vide  supra  p.  47.)  wlio 
bad  been  indicted  before  the  sheriff  of  Lincoln  pro  receptamento  felonum  ;  the  indictment 
was  sent  coram  rege:  Richard  surrendered  himself  and  alleged,  that  he  had  been  tried 
and  acquitted  on  the  said  indictment  before  the  justices  of  gaol-delivery  at  Lincoln,  and 
was  admitted  to  bail ;  after  which  the  judge  of  gaol-delivery  sent  the  record  of  Richard's 
acquittal ;  Margery  the  wife  pleaded,  tFiat  she  also  had  been  tried  and  acquitted,  and  was 
also  bailed,  but  afterwards  she  not  appearing,  a  Capias  was  awarded  against  her  and  her 
bail:  upon  this  her  husband  and  one  John  Hode  two  of  her  bail  came  into  court,  Et  pe- 
tunt  ipsos  admitti  adjinem  cum  domino  rege  occasione  prcedictd  faciendum,  S^  admittun- 
tur)  sometime  afterwards  the  said  John  Hode  came  into  court  and  alleged,  that  he  had 
been  unjustly  fined,  "Quia  praedictum  indictamcntum  super  prjedictam  Margcriam  fac- 
tum minus  sufficiens  est,  eo  quod  preedicta  Mnrgeria  tempore,  quo  ipsa  dictos  felones 
receptasse  seu  eis  consentire  debuisset,  fuit  coopCrta  praedicto  Ricardo  viro  suo,  fc  adbuc 
est  &.  omnino  sub  potestate  sua  [ejus],  cui  ipsa  in  nuUo  contradicere  potuit,  and  ex  quo 
non  inseritur  in  indictamento  prtedicto,  quod  ipsa  aliquod  malum  fecit,  nee  eis  consen- 
tivit,  seu  ipsos  felones  receptavit  ignorante  viro  suo,  petit  judicium,  si  ipsa  vivente  viro 
Buo  dc  aliquo  receptamento  in  prcesentia  viri  sui  occasionari  possit."  The  court  took 
time  to  consider  of  this  plea,  and  in  Michaelmas  term,  anno  Ato  gave  the  following  judg- 
ment. "Viso  &  diligenter  examinato  indictamento  praedicto  super  prajfatam  Margeriani 
facto  videtur  curios,  quod  indictamentum  ilhid  minus  sufficiens  est  ad  ipsam  inde  ponere 
responsuram.     Idco  cessit  processus  versus  earn  omnino.     See  Co.  P.  C.  p.  lOS. 


[3]  But  advising  witnesses  not  to  appear,  though  it  docs  not  make  an  accessary,  is  a 
misdemeanor.  Hale^s  Sum.  219. 

[4]  2  Hawk.  c.  29,  s.  35,  4  Bl.  Com.  38.       ' 


622  HISTORIA  PLACITORUM  CORONA. 

But  a  man  may  be  accessary  to  an  accessary  by  the  receiving  of 
him  knowing  him  to  be  an  accessary  to  felony.  Slam/.  P.  C.  cap.  46. 
/  43.  b.  22  ^ssiz.  52. [5] 

There  can  be  no  accessary  in  receipt  of  a  felon,  unless  he  know 
him  to  have  committed  a  felony:  vide  Stamford's  P.  C.  41.  b. 

But  yet  it  hath  been  held,  that  if  the  party  be  attaint  of  felony  by 
outlawry  or  otherwise  in  the  county  of  .^.  if  any  one  of  that  county 
receive  him,  he  is  accessary,  whether  he  had  notice  or  not,  because 
he  is  a  felon  by  matter  of  record,  whereof  all  in  the  same  county 
ought  to  take  notice.  12  E.  2.  Coron.  317.  Stamf.  P.  C.  cap.  46. 
fol.  41.  b. 

But  it  seems  to  me  necessary  to  make  an  accessary  after,  that  there 
be  notice,  aUho  the  felon  were  attaint  in  the  same  county,  for  pre- 
sumption shall  not  make  men  criminal,  where  the  punishment  is 
capital.[6] 

See  antea,  612.  ch.  55. 


[5]  3  P.  Wyns.  475;  2  Haick.  c.  29,  s.  1. 

[6]  But  some  particular  evidence  is  necessary.  Cotn.  Dig.  Justices,  t.  2  Hawk.  c.  29, 
s.  33,  c.  25,  s.  67;  R.  v.  Thompson,  2  Lev.  308;  3  P.  Wins.  496. 

•  ■  '   >    '  .11  .  . . 

The  punishment  of  accessaries  after  the  fact  is  at  common  law  trivial,  (hey  being  in 
most  cases  allowed  the  benefit  of  clergy.  Fast.  372.  There  are  several  legislative  pro- 
visions pointing  out  the  punishment  in  different  offences.  Thus,  in  abduction,  biga. 
my,  assaults,  child  stealing,  rape,  and  unnatural  crimes,  the  9  Geo.  IV.  c.  31.  s.  31. 
provides,  "that  every  accessary  after  the  fact  to  any  felony  punishable  under  this 
act,  (except  murder)  shall  be  liable  to  be  ilnprisoned  with  or  without  bard  labour,  in 
the  common  gaol  or  house  of  correction,  for  any  term  not  exceeding  two  years;  and 
every  person  who  shall  counsel,  aid,  or  abet  the  commission  of  any  misdemeanor  punish- 
able under  this  act,  shall  be  liable  to  be  indicted  and  punished  as  a  principal  offender." 

In  murder,  9  Geo.  IV.  c.  31.  s.  3.  "every  accessary  after  the  fact  to  murder,  shall  be 
liable  at  the  discretion  of  the  court,  to  be  transported  beyond  the  seas  for  life,  or  to  be 
imprisoned,  with  or  without  hard  labour,  in  the  common  gaol  or  house  of  correction,  for 
any  term  not  exceeding  four  }'ears." 

Accessaries  after  the  fact  to  offences  within  the  7  «^  8  Geo.  IV.  c.  29.  c.  30;  11  Gio. 
IV.  &  1  Will.  IV.  c.  66;  2  Will.  IV.  c.  34;  7  Will.  IV.  &  1  Vict.  c.  36;  c.  85  ;  c.  86; 
c.  ,87 ;  c.  88,  and  c.  89,  respectively,  may  be  imprisoned  not  exceeding  two  years,  with 
or  without  liard  labour,  and  with  or  without  solitary  confinemement,  such  confinement 
not  exceeding  one  month  at  any  one  time,  nor  three  months  in  any  one  year.  Where 
accessaries  after  the  fact  are  punishable  as  for  a  felony,  but  no  specific  punishment  is 
provided  by  the  particular  stutute,  they  may  be  transported  for  seven  years,  or  impri- 
soned, with  or  without  hard  labour,  for  the  whole  or  any  part  of  the  imprisonment,  and 
with  or  without  solitary  confinement;  (7  &  8  Geo.  IV.  c.  28.  s.  9.)  such  confinement  not 
exceeding  one  month  at  any  one  time,  nor  three  months  in  any  one  year;  (7  Will.  IV. 
&  1  Vict.  c.  90.  s.  5,)  and  if  a  male,  may  be  once,  twice,  or  thrice  publicly  or  privately 
whipped,  in  addition  to  the  imprisonment,  if  the  court  shall  think  fit.  7  &,  8  Geo.  IV. 
c.  28.  s.  8. 


HISTORIA  PLACITORUM  CORONA.  623 

CHAPTER  LVir. 

CONCERNING    THE    ORDER    OF  PROCEEDING    AGAINST    ACCESSARIES.[1] 

The  accessary  may  be  indicted  in  the  same  indictment  with  the 
principal,  and  that  is  the  best  and  most  usual  way;  but  he  may  be 
indicted  in  another  indictment,  but  then  such  indictment  must  con- 
tain the  certainty  and  kind  of  the  principal  felony. 

If  a  man  were  accessary  before  or  after  in  another  county,  than 
where  the  principal  felony  was  committed,  at  common  law  it  was 
dispunishable,  but  now  by  the  statute  of  2  (§•  3  E.  6,  cap.  24.  the 
accessary  is  indictable  in  that  county,  where  he  was  accessary,  and 
shall  be  tried  there,  as  if  the  felony  had  been  committed  in  the  same 
county;  and  the  justices,  before  whom  the  accessary  is,  shall  write 
to  the  justices,  <5'c.  before  whom  the  principal  is  attainted,  for  the 
record  of  the  attainder. 

This  writing  is  to  be  by  writ  in  the  king's  name  under  the  teste  of 
the  justice  so  sending  it.    Dy.  253.  b. 

If  the  accessary  be  indicted  either  alone  or  together  with  the  prin- 
cipal, process  of  outlawry  shall  not  go  against  the  accessary  till  the 
principal  be  attainted  or  outlawed,  neither  shall  he  be  put  to  plead 
till  the  principal  appear,  but  shall  be  bailed  till  the  principal  appear; 
vide  Westm.  1.  cup.  14.(«)  [2] 

(a)  2  Co.  Instit.  183.     This  is  now  alterd  by  1  Ann.  cap.  9. 


[1]  See  statutes  7  &  8  Geo.  IV.  c.  64,  s.  9.  On  the  construction  of  this  statute,  see 
Rex  V.  Russell,  Mood.  C.  C.  356;  Recr.  v.  Leddington,  9  Car.  4-  P.  79.  This  provi- 
sion  in  this  statute  with  respect  to  attaiuder,  is  substituted  lor  that  of  1  Ann.  St.  2.  c.  9, 
8.  1,  which  is  repealed. 

[2]  Ry.  V.  Ashmell,  9  C.  Sf  P.  236;  Whitehead  v.  The  Stite,  4  Humphreys,  278.  By 
the  common  law  an  accessary  cannot  be  put  upon  trial  against  his  consent  until  the 
principal  is  convicted.  Hence  if  the  principal  be  dead  before  conviction  the  accessary 
cannot  be  tried.  Commonwealth  v.  Phillips,  16  Mass.  423.  The  guilt  of  the  principal 
must  be  established  before  the  accessary  can  be  tried,  2  Burr''s  Trial,  440.  An  acces- 
sary to  a  felony  committed  by  several,  may  be  tried  as  accessary  to  those  who  have 
been  convicted ;  but  if  tried  as  accessary  to  all,  and  some  have  not  been  proceeded 
against,  it  is  error.  Stoops  v.  Commonwealth,  7  &'.  S;  R.  491.  After  conviction  of  an 
accessary,  it  is  not  ground  for  arresting  judgment  that  the  indictment  does  not  allege 
that  the  principal  had  been  convicted.    Harty  v.  The  State,  3  Blackf.  386. 

By  statute  a  receiver  of  stolen  goods  may  be  tried,  though  the  principal  is  not  con- 
victed. State  v.  &  L.  2  Tyler,  249;  Commomvealth  v.  Andrews,  2  Mass.  14;  Common- 
wealth  y.  Frye,  1   Virg.  Cases,  18;   Butler  v.  State,  3  McCord,  384. 

But  in  North  Carolina  he  cannot  be  tried  before  the  principal,  except  "  when  the  latter 
escapes  and  eludes  the  process  of  law."  Slate  v.  Gross,  1  Murph.  270;  State  v.  Goode, 
1  Hawks,  463. 

But  conviction  of  a  principal  without  judgment  warrants  the  trial  of  the  accessary. 
Commonwealth  v.  Williamson,  2  Virg.  Cases,  211. 

A  verdict  that  the  defendant  indicted  as  accessary  to  a  murder  is  guilty,  without 


623  HISTORIA  PLACITORUM  CORONA. 

The  accessary  shall  not  be  constrained  to  answer  to  his  indictment, 
till  the  principal  be  tried,  9  E.  4.  48.  a.  but  if  he  will  wave  that 
benefit,  and  put  himself  upon  his  trial  before  *the  principal  be  tried- 
he  may,  and  his  acquittal  or  conviction  upon  such  trial  is  good. 
S/0771/.  P.  C.  Lib.  I.  cap.  49.  /  46.  b. 

But  it  seems  necessary  in  such  case  to  respite  judgment  till  the 
principal  be  convicted  and  attaint,  for  if  the  principal  be  after  ac- 
quited,  that  conviction  of  the  accessary  is  annulled,  and  no 
[624]  judgment  ought  to  be  given  against  him;  but  if  he  be  ac- 
quitted of  the  accessary,  that  acquittal  is  good,  and  he  shall 
be  discharged.    8  H.  5.  6.  6.  Corow.  463. 

If  ^.  B.  and  C.  be  indicted  as  principals,  and  D.  is  indicted  as  ac- 
cessary to  them  all,  D.  shall  not  be  arraigned  till  all  the  principals  be 
attaint  or  outlawed,  for  if  Jl.  and  B.  be  tried,  and  acquit  or  attaint, 
yet  D.  may  be  accessary  to  C  and  not  to  Jl.  nor  B.  but  if  A.  B. 
and  C.  be  indicted  as  principals,  and  D.  indicted  as  accessary  to  A. 
only,  there  if  ./^.  be  attaint,  tho  B.  and  C.  be  not,  yet  D.  shall  be 
arraigned.  AQAssiz.2b.  Coron.2l6.  7  H.4.36.b.  S t am f.ubi supra. 

stating   whether    accessary   to   the   murder    in    the   first   or    second   degree,    is   erro- 
neous,    lb. 

If  A.  is  cliarged  in  tlie  indictment  as  principal,  and  B,  as  accessary,  and  the  jury 
find  B.  to  he  the  principal  and  A,  tlie  accessary,  tiie  indictment  is  sustained.  Slate  v. 
Mairs,  Coxe,  453. 

The  court  may,  in  its  discretion,  permit  an  accessary  to  be  tried  separately  from  the 
principal.    State  v.  Yancey,  1  Const.  Rep.  241. 

If  the  principal  in  murder  has  absconded,  and  process  of  outlawry  is  seasonably  com- 
menced, but  there  is  not  time  to  finish  it  at  the  second  term,  the  accessary,  who  lias 
refused  to  be  tried  without  the  principal,  aithou2"ii  he  has  been  two  terms  under  indict- 
ment, is  not  eutitled  to  be  discharged  on  habeas  corpus.  Commonwealth  v.  Sheriffs 
\&S.  cy  R.  304. 

Whatever  constitutes  one  as  an  accessary  in  a  capital  offence,  makes  him  liable  as 
principal  in  a  misdemeanor.    State  v.  Westjield,  1  Baily,  132. 

The  record  of  the  conviction  of  a  slave  as  principal  in  a  felony,  is  evidence  against  a  ^ 
free  man  as  accessary  before  tlie  fact;  so  of  the  slave's  confession  of  his  own  guilt  as 
principal;    State  v.  Sims,  2  Baily,  29  ;  State  v.  Cranky ib.  66. 

The  records  of  the  principal's  conviction  must  be  produced  on  trial  of  tlie  accessary, 
unless  they  are  tried  together,  or  the  latter  has  consented  to  be  tried  before  the  former, 
or  the  former  is  dead  or  has  been  pardoned  before  trial.  But  if  tiie  indictment  charge 
the  accessary  with  being  present,  aiding  and  abetting,  the  principal's  guilt  may  be 
proved  by  parol  evidence,  though  the  principal  has  been  convicted.  State  v.  Crank, 
2  Baily,  66. 

VVhcrc  the  principal  and  accessary  are  joined  in  an  indictment  and  tried  separately,^ 
tlie  records  of  the  principal's  conviction  is  prima  facie  evidence  of  his  guilt  upon  the 
trial  of  the  accessary,  and  as  tlie  burden  of  proof  is  on  the  accessary,  he  must  show- 
clearly  that  the  principal  ought  not  to  have  been  convicted.  Commonwealth  v.  Knapp, 
10  Pick.  481. 

But  the  accessary  in  such  case  is  not  restricted  to  proof  of  facts  that  were  not  shown 
on  the  former  trial,  and  wliich  arc  incompatible  with  the  guilt  of  the  principal.  lb. 

If  an  indictment  allege  a  burglarious  entry  with  intent  to  steal,  and  then  and  there 
stealing,  it  is  only  the  oficuce  of  burglary,  and  a  count  charging  one  as  accessary  to 
"  the  offence  aforesaid,"  is  good.    Sloops  v.  Coinmomoealth,  7  S.  iSf  R.  491. 

In  an  indictment  against  an  accessary  before  the  fact  in  felony,  it  is  not  necessary  to 
set  forth  tiie  conviction  or  execution  of  the  principal.  State  v.  Crank,  2  Baily,  6G ; 
State  V.  Sims,  ib.  29. 

Where  one  was  indicted  as  accessary  to  a  murder  committed  by  a  slave,  it  was  held 
enfficient  to  describe  the  slave  by  his  own  name,  without  setting  out  that  of  his  master. 
State  V.  Crank,  2  Baily,  C6.  ■  j 


HISTORIA  PLACITORUM  CORONA.  -  624 

Bat  yet  the  court  may  if  they  please  arraign  the  accessary  in  the 
first  case, (6)  for  if  he  be  found  accessary  he  shall  have  judgment, 
but  if  acquitted  of  being  accessary  to  A.  yet  that  acquittal  dischargcth 
him  not  of  being  accessary  to  B.  or  C.  and  therefore  when  they  come 
in  and  plead  and  are  attaint,  D.  may  be  arraigned  de  novo  a.s  acces- 
sary to  B.  and  C.  Plowd.  Com.  9S.  b.  Gittin^s  case.  So  that  it  is  in 
the  discretion  of  the  court  to  arraign  him  or  not  before  B.  and  C.  be 
attaint,  tho  it  be  the  safer  course  to  respite  the  arraignment  of  the  ac- 
cessary till  B.  and  C.  appear  or  are  outlawed. 

If  is.  be  indicted  or  appealed  as  principal,  and  B.  as  accessary 
before  or  after  by  the  same  indictment,  and  the  principal  plead  in  bar 
or  abatement,  or  autrefoits  acquit,  the  accessary  shall  not  be  forced 
to  answer,  till  that  plea  be  determined,  for  if  it  be  found  for  A.  the 
accessary  is  discharged,  if  against  ./?,  yet  he  shall  after  plead  over  to 
the  felony,  and  may  be  acquitted.  9  H.  7.  19.  b. 

\i  Jl.  be  indicted  as  principal,  and  B.  as  accessary,  they  may  be 
both  arraigned  together,  and  plead  together,  and  put  upon  their  trial 
by  the  same  jury,  and  the  jury  shall  be  charged  to  inquire  first  of  the 
principal,  and  if  they  find  him  not  guilty, then  to  acquit  the  accessary; 
but  if  they  find  him  guilty,  then  to  inquire  of  the  accessary.  Seig- 
neur Sanchar's  case,(c)  40  Assiz.  8.  7  H.  4.  36.  ^.[3]  Coke 
super  statute  Westm.  1.  cap.  \A.{d)  but  in  that  case  judg-  [625  ] 
ment  must  be  first  given  of  the  principal,  for  if  any  thing 
obstruct  judgment,  as  clergy,  a  pardon,  i^'C.  the  accessary  is  to  be 
discharged. 

If./?,  be  attaint  of  murder  upon  an  appeal,  and  then  Jl.  is  indicted 
of  murder  as  principal,  and  B.  as  accessary,  the  principal  pleads  the 
former  attainder,^,  shall  not  be  put  to  answer  as  accessary,  because 
he  is  not  attaint  upon  the  same  suit,  and  so  it  is  if  the  attainder  of  t/^. 
were  first  upon  the  appeal.  7  H.  4.  36.  a.  Stamf.  P.  C.  47.  a.  Coke 
uhi  supra. 

If  the  principal  be  attainted  and  hath  his  clergy,  or  be  pardoned 
after  attainder,  the  accessary  shall  be  put  to  answer;  but  if  the  prin- 
cipal be  only  convict  and  hath  his  clergy,  or  be  pardoned,  or  stand 
mute,  or  die  in  prison  before  judgment,  or  challenge  above  thirty- 
six  peremptorily,  the  accessary  shall  not  be  put  to  answer,  for  the 
principal  was  never  attainted, (e)  and  altho  formerly  there  were  diver- 
sity of  opinions  in  the  books  in  these  cases,(/)  yet  the  law  is  now 

{b)  To  make  this  consistent  with  what  goes  before,  we  must  understand  the  former 
passage  to  mean,  that  where  he  is  indicted  as  accessary  to  all,  he  shall  not  be  nrraigned 
as  accessary  to  them  all  till  all  be  attaint  or  outlawed,  and  this,  that  the  court  may  in 
such  case,  if  they  please,  arraign  him  only  as  accessary  to  him  who  is  attaint,  tho  the 
others  do  not  appear. 

(c)  9  Co.  Rep.  119.  a.  (d)  2  Co.  Inst.  184. 

(e)  It  was  for  this  reason,  that  Weston  the  principal  actor  in  the  murder  of  Sir  Thomas 
Overbury  could  not  for  a  long  while  be  prevailed  with  to  plead,  that  so  the  earl  and  coun- 
tess of  Somerset,  who  were  the  movers  and  procurers  mio'lit  escape.  See  State  Tr.  Vol.  I, 
p.  314. 

(/)  See  Coron.  51,  58. 

[3]  9  Rep.  119.  Foster's  Rep.  361.  S.  C 


625  HISTORIA  PLACITORUM  CORONiE. 

settled  as.  above, (§•)  4  Co.  Hep.  43,  44.  Bihith's  case  and  Syer^s  case, 
Coke  super  PVestm.  1.  cap.  14. 

If  the  principal  be  erroneously  attaint,  the  accessary  shall  be  put  to 
answer,  and  shall  not  take  advantage  of  the  error  in  that  attainder, 
2  R.  3.  21,  22.  but  the  principal  reversing  the  attainder,  reverseth  the 
attainder  of  the  accessary.   IS  E.  4.  9.  b. 

li  Ji.  be  indicted  as  principal,  and  B.  as  accessary  before  or  after, 
and  both  be  acquit,  yet  B.  may  be  indicted  as  principal,  and  the  for- 
mer acquittal  as  accessary  is  no  bar.[4]     4  E.  6.  B.  Coron.  186.  ■ 
Knighl ley's  case,  CrompLf.  43.  a. 

But  if  ^^.  be  indicted  as  principal  and  acquitted,  he  shall 
r  626  3  iio'^  be  indicted  as  accessary  before,  and  if  he  be,  he  may 
plead  his  former  acquittal  in  bar,  for  it  is  in  substance  the 
same  oflense,  Stamf  P.  C.  Lib.  II.  cap.  36.fol.  105.  a.  2  E.  3.    Co- 
ron. 150  Si"  282.  but  the  antient  law  was  otherwise.  8  E.  2.  Coron.  424. 

But  if  he  be  indicted  as  principal  and  acquitted,  he  may  yet  be  in- 
dicted as  accessary  after,  for  they  are  oftenses  of  several  natures. 
27  ^ssiz.  10.  S  H.  5.  Coron.  463.  Stamf  P.  C.  ubi  supra. 

And  so  it  is  if  he  be  indicted  as  accessary  before  diU^  acquitted,  yet 
for  the  same  reason  he  may  be  indicted  as  accessary  after.\_5^ 

(g)  But  since  our  author  wrote,  it  is  settled  quite  otherwise  by  1  Ann.  cap.  9.  for  by 
that  statute,  "  If  any  principal  offender  shall  be  convicted  of  felony,  stand  mute,  or  chaK 
lenge  above  twenty,  it  shall  be  lawful  to  proceed  against  the  accessary,  either  before  or 
after  the  fact,  in  the  same  manner  as  if  such  principal  felon  had  been  attainted  thereof, 
notwithstanding  such  principal  felon  be  admitted  to  his  clergy,  or  otherwise  delivered 
before  attainder;  and  every  such  accessary,  if  convicted,  stand  mute,  SfC,  shall  suffer  the 
same  punishment,  as  if  such  principal  had  been  attainted. 

[4]  But  Mr.  Justice  Foster  observes  upon  this,  that  in  the  eye  of  the  law  the  offences 
of  principal  and  accessary  do  specially  differ;  and  if  a  person  indicted  as  principal  can- 
not be  convicted  upon  evidence  tending  barely  to  prove  him  to  have  been  accessary  before 
the  fact,  which  must  needs  be  admitted,  it  doth  not  appear  how  an  acquittal  upon  one 
indictment  can  be  a  bar  to  a  second,  for  an  oftence  specially  different  from  it.  Fast.  362. 
And  the  distinction  is  also  taken  in  Rex  v.  Wijifre'd  Gordon,  1  EasVs  P.  C.  352.  and 
there  it  was  held,  by  all  the  judges,  that  W.  G.  having  been  indicted  as  accessary  before 
the  fact,  and  acquitted  upon  that  indictment,  might  be  indicted  again  as  principal. 

[5]  Indictment  of  Accessary  together  with  his  Principal. — Where  the  parties  are  thus 
joined  in  the  same  proceeding,  the  proper  course  is  first  to  state  the  guilt  of  the  principal 
according  to  the  facts,  as  if  he  alone  had  been  concerned;  and  then  in  case  of  accessaries 
before  the  fact,  to  aver  "  that  C.  D.,  lute  of,  &.c.  {the  procurer)  before  the  committing 
of  the  said  felony  and  murder,  {or  burglary,  as  the  case  is,)  in  form  aforesaid,  to  wit,  on, 
&c.,  with  force  and  arms,  &c.,  did  maliciously  and  feloniously  incite,  move,  procure,  aid 
and  abet,"  (or  counsel,  hire,  and  command,)  following  the  words  of  the  statute,  if  the  de- 
fendant he  made  an  accessary  thereby,  or  else  the  efiect  of  such  words,  see  Rex  v.  Gre. 
vil,  1  And.  VJ5;  "the  said  A.  B.,  {the  principal  felon)  to  do  and  commit  the  said  felony 
and  murder,  and  in  manner  aforesaid,  against  the  peace,"  &c. 

And  where  a  man  is  indicted  as  accessary  after  the  fiict,  together  with  his  principal, 
the  original  lelony  is  to  be  stated  in  the  same  way,  and  the  conclusion  must  aver  that  the 
accessary  did  receive,  harbour,  and  maintain,  &c.,  the  principal  felon,  well  knowing  that 
he  had  committed  the  felony.  The  averment  of  knowledge  is  indispensably  requisite, 
because  without  it  the  guilt  does  not  manifestly  appear.  Com.  Dig.  Justices,  t.;  2  Hawk. 
c.  29.  s.  33;  c.  25.  s.  67  ;  R.  v.  Thompson,  2  L<v.  308. 

A  person  may  be  indicted  for  receiving  stolen  property,  if  it  remain  the  same  sub- 
stance, though  the  name  be  changed  ;  and  therefore  a  principal  may  be  indicted  for  steal- 
ing of  a  live  sheep,  and  the  accessary  with  receiving  twenty  pounds  of  mutton.  Rex  v. 
Crowell  and  Green,  2  East's  I'.  C.  781  ;  R.  v.  Puckering,  R.  6f  M.  C.  C.  242. 

la  an  indictment  against  the  receiver  of  Btolen  property,  the  property  stated  to  have 


HISTORIA  PLACITORUM  CORONiE.  626 

been  received  should  agree  with  that  averred  to  be  stolen  ;  but  in  Morris's  case,  Leach, 
525,  where  the  indictment  charged  the  principal  with  stealing  two  bank  notes,  the  pro- 
perty of  S.  S.,  and  charged  the  accessary  with  receiving  the  said  notes,  the  property  and 
chattels  of  the  said  ^.  S.,  it  was  holden,  that  the  word  "  chattels"  miglit  he  rejected  as 
surplusage. 

It  is  not  necessary  to  use  the  word  "  accessary"  in  the  indictment,  {Rex  v,  Burridge, 
Plow.  477,)  or  to  set  forth  the  means  by  which  the  accessary  before  the  fact  incited  the 
principal  to  commit  the  felony,  or  the  accessary  after  received  or  comforted  him;  for  it 
is  periectly  immaterial  in  what  way  the  purpose  of  the  one  was  effected,  or  tlie  harbour, 
ing  of  the  other  secured  ;  and  as  the  means  are  frequently  of  a  complicated  nature,  it 
would  lead  to  great  inconvenience  and  perplexity  if  they  were  always  to  be  described 
upon  the  record.    Co.  Enlr.  56,  57;  Rast.  Entr.  48;  9  Co.  114;  2  Hawh.  c.  29.  s.  17. 

If  two  are  charged  jointly  with  receiving  stolen  goods,  a  joint  act  of  receiving  must  be 
proved;  a  proof  that  one  received  in  the  absence  of  the  other,  and  afterwards  delivered  to 
liim,  will  not  suffice.  Successive  receivers  are  all  separate  receivers,  and  all  punishable. 
Bex  V.  Messingham,  R.  Sf  M.  C.  C.  257. 

Indictment  against  the  Accessary  alone,  after  the  conviction  of  the  Principal.  —It  is  not 
necessary  in  this  case  to  aver  that  the  latter  committed  the  felony,  or  on  the  trial  to  enter 
into  a  detail  of  the  evidence  adduced  against  him;  but  it  is  not  sufficient  to  recite  with 
certainty  the  record  of  the  conviction,  because  the  court  will  presume  every  thing  on  the 
former  occasion  to  have  been  rightly  and  properly  transacted.  Holmes  v.  Walsh,  7  T. 
R.  465;  Fost.  365. 

It  is  sufficient  in  an  indictment  for  felony  against  a  receiver  of  stolen  goods  to  state, 
that  the  principal  was  "tried  and  duly  convicted,"  without  going  on  to  show  what  judg- 
ment was  passed  upon  him,  or  how  he  was  delivered.     Hyman''s  case,  2  Leach,  925. 

Indictment  against  Accessary  alone  for  a  substantive  felony  or  misdemeanor. — In  this 
case  it  is  not,  it  seems,  necessary  to  allege  the  original  felony  or  misdemeanor  with  that 
particularity  as  to  time  and  place,  as  in  an  indictment  against  the  defendant  together 
with  the  principal.   See  1  Stark.  C  L.  168;   R.  v.  Scott,  2  Easfs  P.  C.  781. 

The  indictment  against  a  receiver  of  stolen  goods,  need  not  allege  time  and  place  to 
the  fact  of  the  stealing,  it  is  sufficient  if  they  be  alleged  to  the  fact  of  the  receipt.  2  East, 
P.  C.  780.  In  this  indictment  it  is  not  necessary  to  aver  that  the  principal  has  not  been 
convicted.    R.  v.  Baxter,  5  T.  R.  83. 

An  indictment  is  properly  framed  which  states  that  the  principal  felon  cast  away  and 
destroyed  a  vessel,  and  that  the  accessary  incited,  moved,  aided,  counselled,  hired,  and 
commanded  him  to  do  it;  and  the  accessary  may  be  convicted  on  an  indictment  so 
framed,  although  the  principal  felon  has  not  been  tried,  and  does  not  appear  to  be  amena- 
ble  to  justice.  R.  v.  Wallace,  \  C.  S^  M.  200.  In  other  respects  the  indictment  will 
assimilate  that  against  principal  and  accessary  jointly. 

If  the  principal  be  unknown,  the  indictment  may  state  the  offisnce  to  have  been  com- 
mitted by  "some  person  or  persons  to  the  jurors  aforesaid  unknown."  Thus  in  the  case 
of  John  Thomas,  the  indictment  was  for  receiving  goods  stolen  by  persons  unknown, 
which  was  objected  to  be  insufficient,  in  not  ascertaining  the  principal  tliief,  and  that  it 
ought  to  appear  to  whom  in  particular  the  prisoner  was  accessary.  This  objection 
being  referred  to  the  judges,  they  were  unanimously  of  opinion  that  the  indictment  was 
good,  that  the  greater  view  of  the  statutes  was  to  reach  the  receivers  where  the  princi- 
pal thieves  could  not  easily  be  discovered.     R.  v.  Thomas,  2  Easfs  P.  C.  781. 

Where  the  principal  is  known,  it  seems  proper  to  state  it  according  to  the  truth;  and 
the  common  form  of  the  indictnient  is  to  state  the  fact  of  stealing  the  goods  by  tiie  prin- 
cipal and  the  receipt  of  them  by  the  receiver,  he  then  and  there  well  knowing  the  said 
goods  and  chattels  to  have  been  feloniously  stolen,  <fcc.  R.  v.  Hymen,  2  Leach,  925.  Or 
an  allegation  that  the  goods  were  stolen  "  by  a  certain  evil  disposed  person"  is  good,  and ' 
without  stating  the  name  of  the  principal  felon,  or  averring  that  he  is  unknown.  R.  v.  Jer- 
vis,  6  C.  &,-  P.  156.     And  this  in  tnany  cases,  may  be  the  best  mode  of  stating  the  offi'nce. 

Where,  in  an  indictment  against  an  accessary  to  a  felony,  it  was  stated  that  the  felony 
was  committed  "  by  a  person  to  the  jurors  unknown,"  and  it  appeared  that  the  principal 
felon  was  a  witness  before  the  grand  jury,  it  was  held  that  the  indictment  could  not  be 
supported.    R.  v.  Waker,  3  Comp.  264;   Rex  v.  Casper,  9  C.  S<;  P.  289. 

If  a  charge  against  an  accessary  be  that  the  principal  felony  was  committed  by  per- 
sons  unknown,  it  is  no  objection  that  the  same  grand  jury  have  found  a  bill  imputing 
the  principal  felony  to  /.  S.  Thus  in  jR.  v.  J.  Bush,  the  prisoner  was  tried  before  Mr. 
Baron  Garrow,  at  the  Gloucester  Summer  Assizes,  1818,  and  was  convicted  and  received 


626  HISTORIA  PLACITORUM  CORONA. 

sentence  of  transportation  for  fourteen  years,  but  execution  was  stayed  in  order  that  the 
opinion  of  the  judges  might  be  taken  upon  the  Jiropriety  of  the  conviction.  The  indict- 
meni  stated  that  "  a  certain  person  or  persons  to  the  jurors  unknown,"  the  dwelling-house 
oi  Hannah  Wilmot,  burglariously  did  break  and  enter  and  certain  silver  plate  commonly 
called  a  silver  cream-jug  lie  of  her  goods  did  steal ;  and  timt  Bush  feloniously  did  receive 
and  have  the  same,  he  then  and  there  well  knowing  the  same  to  have  been  feloniously  and 
burglariously  stolen,  &c.  Upon  the  trial  it  appeared  that  among  the  records  of  indictments 
returned  by  the  same  grand  jury,  there  was  one  charging  one  Henry  Moreton  as  princi- 
pal  in  the  burglary,  and  the  prisoner  Bush  as  accessary  after  in  receiving  the  cream  jug. 
Mrs.  Wilmot  proved  tliat  lier  house  had  been  broken  but  once,  that  she  had  lost  only  one 
cream-jug,  and  that  she  had  preferred  two  indictments  to  the  grand  jury.  The  counsel 
for  the  prosecution  had  declined  to  proceed  on  the  indictment  against  Moreton.  Ludlow, 
for  the  prisoner,  objected  that  the  allegation  in  the  present  indictment,  that  the  person  or 
persons  who  committed  the  burglary  were  unknown  to  the  jurors,  is  negatived  by  the 
other  record,  and  that  the  prisoner  was  entitled  to  be  acquitted.  This  point  was  reserved 
for  the  opinion  of  the  judges,  who  in  Michaelmas  Term,  1818,  held  the  conviction  right, 
being  of  opinion  that  the  finding  by  the  grand  jury  of  the  bill  imputing  the  principal 
felony  to  J.  S.  was  no  objection  to  the  second  indictment,  although  it  stated  the  princi- 
pal felony  to  have  been  committed  by  certain  persons  to  the  jurors  aforesaid  aninoicw. 
R.  V.  Bush,  R.  ^  R.  C.  C.  372. 

In  a  late  case  it  was  made  a  question,  but  not  decided,  whether  upon  a  charge  from 
receiving  from  T.  S.  the  receipt  from  S.  S.  must  be  proved,  the  statute  making  it  crimi- 
nal without  regard  to  the  person  from  whom  the  stolen  property  is  received.  R,  v.  Mes- 
singham,  R.  Sf  M.  C.  C.  257. 

On  indictment  against  principal  and  accessary  before  the  fact,  the  evidence  in 
this  case  must  consist'  of  proof  of  the  guilt  of  the  principal  so  as  to  obtain  his  convic- 
tion. The  accessary  may  enter  into  the  full  defence  of  the  principal,  and  avail  himself 
of  every  matter  of  fact,  and  every  point  of  law  tending  to  the  acquittal  of  the  principal, 
■for  the  accessary  in  this  case  is  to  be  considered  as  particeps  in  lite,  and  this  sort  of  de- 
fence necessarily  and  directly  tendcth  to  his  own  acquittal.  Fost.  265. 

The  prosecutor  must  prove  that  the  accessary  had,  previous  to  the  crime,  procured, 
hired,  advised  or  commanded  the  principal  to  commit  it,  and  whether  this  were  done 
directly  or  through  the  intervention  of  a  third  person,  is  immaterial.  Fost.  125.  It  must 
appear  the  accessary  was  absent  when  the  crime  was  committed,  so  that  he  was  not  a 
principal. 

On  indictment  against  an  accessary  after  the  fact  together  with  the  principal,  the  pro- 
secutor should  prove  the  guilt  of  the  principal.  He  must  prove  that  the  defendant  re- 
ceived, harboured  or  maintained  him,  and  knew  he  had  committed  a  felony.  If  the  pri- 
soner, at  different  times,  receive  property  stolen  from  the  prosecutor,  although  the  sub- 
stantive charge  must  be  confined  to  some  one  receiving,  yet  the  other  receivings  may  be 
given  in  evidence,  to  show  a  guilty  knowledge  that  the  goods  were  stolen.  Rex  v. 
Dunn,  Car.  C.  L.  1.31 ;  R.  Sf  M.  C.  C.  146.  S.  C.  and  see  Rex  v.  Burridge,  3  P.  Wms.  439. 
He  must  be  proved  to  have  done  some  act  to  assist  the  felon  personally,  or  employed  an- 
other person  to  do  so.  Reg.  v.  Chappie,  9  Car.  ^  P.  355;  Reg.  v.  Jervis,  2  M.  Sf  Rob.  40. 

On  indictment  against  the  accessary  after  conviction  of  principal,  the  prosecutor  should 
prove  the  conviction  of  the  principal;  where  the  accessary  is  tried  in  the  same  county  in 
which  the  principal  was  convicted,  this  is  easily  effected.  But  if  the  accessary  be  tried 
in  a  different  county,  it  is  necessary  to  produce  either  the  record  itself  or  an  examined 
copy  of  it.  l^his  is  evidence  against  the  accessary  sufficient  to  put  him  upon  his  defence, 
for  it  is  founded  upon  a  legal  presumption  that  every  thing  in  tlie  former  proceeding  was 
rightly  and  properly  transacted.  Holmes  v.  Walsh,!  T.  R.  465. 

But  a  presumption  of  this  kind  must,  as  it  seems,  give  away  to  facts  manifestly  and 
clearly  proved.  Fost.  365.  As  against  the  accessary,  therefore,  the  conviction  of  the  prin. 
cipal  will  not  be  conclusive;  it  is  as  to  him,  res  inter  alios  acta:  for  an  accessary  may 
controvert  the  guilt  of  the  principal,  notwithstanding  the  record  of  his  conviction. 
Smithes  case,  O.  B.  1783.  1  Leach,  289.  And  therefore  if  it  shall  come  out  in  evi- 
dence upon  the  trial  of  the  accessary,  as  it  sometimes  hath,  and  frequently  may,  that  the 
offence  of  which  the  principal  was  convicted,  did  not  amount  to  felony  in  him,  or  not  to 
that  species  of  felony  with  which  he  was  cliargcd,  the  accessary  may  avail  himself  of  this, 
and  ought  to  be  acquitted.  Fost.  365.  and  see  Danelly^s  case,  1  Russ.  30;  2  Marsh,  371; 
Russ.Sf  R.C.C.3\Q. 

And  as  in  point  of  law  so  also  in  point  of  fact,  if  it  shall  manifestly  appear  in  tlie  course 
of  the  accessary's  trial,  that  the  principal  was  innocent,  common  justice  seemeth  to  re- 


HISTORIA  PLACITORUM  CORONA.  626 

quire  that  the  accessary  should  be  acquitted.  As  suppose  a  man  is  convicted  upon  cir- 
cumstantial evidence,  strong  as  that  sort  of  evidence  can  be,  of  murder,  another  is  after- 
wards  indicted  as  accessary  to  this  murder,  and  it  couicth  out  upon  the  trial  by  incon- 
testable  evidence  tliat  the  person  who  was  supposed  to  be  murdered  is  still  living,  in  this 
case,  certainly,  the  person  indicted  as  accessary,  shall  be-acqnitted.  Or  suppose  the  per- 
son to  be  in  tact  murdered,  and  that  it  should  come  out  in  evidence,  to  the  satisfaction 
of  the  court  and  jury,  that  the  witnesses  against  the  principal  were  mistaken  in  his  per- 
son, (a  case  of  tliis  kind  Sir  Michael  Foster  says  he  has  known,)  that  the  person  convicted 
as  principal,  was  not,  nor  could  possibly  have  been  present  at  the  murder.  Fast.  367,  368. 
1  Hawk.  457.  - 

Whatever  is  evidence  against  the  principal  is  prima  facie  evidence  of  the  principal 
felony,  as  against  the  accessary.  If  an  indictment  against  a  receiver,  state  the  principal 
felony  to  have  been  committed  by  A.  B.  whatever  would  have  been  evidence  of  the  prin- 
cipal felony  to  convict  A.  B.  is  receivable,  to  prove  this  allegation  on  the  trial  of  the  re- 
ceiver,  but  is  not  conclusive.  Therefore  if  A.  B.  confessed  the  principal  felony,  that 
confession  is  admissible  on  trial  of  the  receiver  to  prove  the  commission  of  the  principal 
felony.  Rex  v.  Blick,  4  C.  Sf  F.  377. 

Competency  of  Witnesses. — The  principal,  though  not  convicted  or  pardoned,  may  be 
examined  as  a  witness  against  the  accessary  or  receiver.  In  two  prosecutions  for  a 
misdemeanor,  on  statute  22  Geo.  III.  c.  58.  the  principal  felons,  though  not  convicted, 
were  admitted  as.  witnesses  on  part  of  the  crown.-  Rex  v.  Fatram  Bridgewater^  Sum.  Ass, 
Cor.  Grosse,  J.  1787.  2  East,  782.  Rex  v.  Haslam,  1  Leach,  418.  2  East,  F.  C.  728;  sed 
vide  Reg.  v.  Lyons,  9  Car.  Sf  F.  555,  where  principal  and  accessary  were  charged  in  the 
same  indictment.  So  in  Jonathan  Wild's  case,  on  a  prosecution  on  statute  4  Geo.  I. 
c.  1 1,  for  taking  a  reward  to  help  to  stolen  goods.  2  East's  F.  C,  782,  783. 

In  a  case  where  the  principal  was  indicted  for  burglary  and  larceny  in  a  dwelling, 
house,  and  the  accessary  charged  in  the  same  indictment  as  accessary  before  the  fact, 
to  the  said  "felony  and  burglary,"  and  the  jury  acquitted  the  principal  of  the  burglary, 
but  found  him  guilty  of  the  larceny;  it  seems  the  judges  were  of  opinion  that  the  acces- 
sary should  have  been  acquitted,  for  the  indictment  charged  him  as  accessary  to  the 
burglary  only,  and  the  principal  being  acquitted  of  that,  the  accessary  should  be  acquit- 
ted also.  R.  V.  Donnelly,  and  Vaughan,  1  Russell,  30;  2  Marsh,  571 ;  1  R.  Sf  R.  V.  C. 
310.  S.  C. 


CHAPTER  LVIII. 

CONCERNING    FELONIES    BY   ACT    OF    PARLIAMENT,  AND    FIRST    CON-. 

CERNING    RAPES. 

Having  thus  considered  the  felonies  that  are  by  the  common  law,  I 
now  proceed  to  the  handling  of  felonies  by  act  of  parhament,  and 
because  it  is  hardly  possible  to  reduce  the  titles  of  them  under  any 
dependent  method,  and  difficult  to  digest  them  under  heads,  I  shall 
take  them  up  in  order  of  time,  according  to  the  series  and  order  of 
the  reigns  and  years  of  the  several  kings  wherein  they  were  enacted, 
only  where  I  meet  with  any  felony  in  the  time  of  any  king's  reign, 
I  shall  as  near  as  I  can  bring  together  those  Acts  of  Parliament  both 
before  and  after,  that  concern  that  subject. 

And  first  concerning  rape. 

Rape  was  antiently  a  felony,  as  appears  by  the  laws  of 
Jldleslane  mentioned  by  Bracton,  Lib.  \\\.,{a)   and  was  [627  J 
punished  by  loss  of  life. 

But  in  process  of  time  that  punishment  seemed  too  hard;  but  the 
truth  is,  a  severe  punishment  succeeded  in  the  place  thereof,  viz,  cas- 

(a)  De  Corona,  cap,  28./.  147.  a. 


627  HISTORIA  PLACITORUM  CORONA. 

tration  and  the  loss  of  eyes,(6)  as  appears  by  Bracton  (who  wrote  in 
the  time  of  Henry  III.)  Lib.  III.  cap.  28.  but  then,  tho  the  offender 
were  convict  at  the  liing's  suit,  the  woman  that  was  ravished  (if  sin- 
gle) might,  if  she  pleased,  redeem  him  from  the  execution,  if  she 
elected  him  for  her  husband,  and  the  offender  consented  thereunto, 
as  appears  by  Bracton  uhi  supra. 

This  kind  of  punishment  it  seems  continued  till  3  E.  1.  and  then 
by  the  statute  of  fVesfm.  1.  cap.  13.,(c)  it  was  enacted,  "That  none 
ravish  or  take  with  force  a  damsel  within  age  with  her  consent  nor 
against  her  consent,  nor  no  dame,  damsel  of  age,  nor  any  other  wo- 
man against  her  will;  and  if  any  do  it,  the  party  may  sue  within 
forty  days,  and  common  right  shall  be  done;  and  if  none  sue  within 
forty  days,  the  king  shall  have  the  suit,  and  the  party  convict  shall 
suffer  two  years  imprisonment,  and  be  ransomed  at  the  king's  plea- 
sure. 

This  statute  gives  a  punishment  by  imprisonment  and  ransom  only, 
if  attaint  at  the  king's  suit,  and  takes  away  castration  and  putting 
out  of  eyes;  but  it  seems  as  to  the  suit  of  the  party,  if  commenced 
within  forty  days,  it  alters  not  the  punishment  before,  Le  roy  lui 
ferra  common  droiture. 

But  by  the  statute  of  Westm.  2.  cap.  3A.{d)  the  offense  of  rape  is 
made  felony,  "  If  a  man  ravish  a  married  woman,  dame,  or  damsel, 
where  she  neither  assented  before  nor  after,  Eyt  judgment  de  vy  <5* 
member;  if  she  assent  after,  yet  the  king  shall  have  the  suit." 

This  created  rape  a  felony,  and  therefore  it  was  not  inquirable  in 
a  leet,  for  it  was  made  felony  de  novo  by  this  statute,  22  E.  4.  22.  a. 
6  H.  7.4.  b. 

Rape  is  the  carnal  knowledge  of  any  woman  above  the 
r  628  ]  age  of  ten  years  against  her  will,  and  of  a  woman-child, 
under  the  age  of  ten  years  with  or  against  her  will.     Co. 
P.  C.  cap.  11.  p.  60.[1] 

(6)  By  the  laws  of  Wiltiam  I.  this  offense  was  punished  with  castration.     Vide  Leges 
Gul.  I.  I.  19.     Wilk.  Leg.  Anglo-Sux.  p.  222  Sf  290. 
(c)  2  Co.  Instit.  180.  (d)  2  Co.  Inst.  433. 


[1]  To  constitute  the  offence  there  must  be  a  penetration.  Rex  v.  Hill,  1  East^s  P.  C. 
43;).  It  was  held  in  Bussen^s  case,  1  East,  P.  C.  438,  that  the  least  degree  of  pene. 
tration  was  sufficient,  though  not  attended  with  tiie  deprivation  of  the  marks  of  vir- 
ginity. In  that  case  it  was  proved,  that  the  parts  of  the  injured  party  were  so  narrow 
that  a  finger  could  not  he  introduced,  and  that  the  hymen  was  whole  and  unbroken;  £ind 
yet  this  was  held  a  sufficient  penetration  to  constitute  the  offence,  (emission  having  been 
also  proved,  which  was  necessary  as  the  law  stood  at  that  time;)  and  see  Reg.  v.McRue, 

8  C.  Sf  l\  541. 

The  offence  may  be  complete  though  the  hymen  was  not  ruptured.    Reg.  v.  Hughes, 

9  C.  Sf  P.  Ib2 ;  overruling  Rex  v.  Gammon,  5  C.  (^  P.  321.  - 

If  penetration  cannot  be  proved,  still  tlie  defendant  may  be  convicted  of  the  assa-ult. 
7  Will.  IV.  4-  1  Vict.  c.  85,  s,  11. 

Before  the  9  Geo.  IV.  c.  31,  s.  18,  it  was  necessary  to  prove  emission,  which  might  be 
proved  either  positively  by  the  evidence  of  the  woman  that  she  felt  it,  or  it  might  be  pre- 
sumed  from  circumstances ;  as  for  instance,  that  the  defendant,  alter  having  connection 
with  the  prosecutrix,  arose  from  her  voluntarily  without  being  interrupted  in  the  act. 


HISTORIA  PLACITORUM  CORONA.  628 

Rex  V.  Harmwood,  1  East,  P.  C.  440;  Rex  v.  Sheridan,  1  East,  P.  C.  438;  Rex  v.  Bur. 
ruics,  R.  Sf  R.  519.  But  now  by  that  act,  s.  lH,  reciting,  "And  whereas  upon  trials  for 
the  crimes  of  buggery  and  of  rape,  and  of  carnally  abu,^ing  girls  under  the  respective 
ages  hereinbefore  mentioned,  offender's  frequently  escape  by  reason  of  the  difficulty  of 
the  proof  whicli  lias  been  required  of  the  completion  of  those  several  crimes;"  for 
remedy  thereof  it  is  enacted,  "That  it  shall  not  be  necessary  in  any  of  those  cases  to 
prove  the  actual  emission  of  seed  in  order  to  constitute  a  carnal  knowledge,  but  that  the 
carnal  knowledge  shall  be  deemed  complete  upon  proof  of  penetration  only."  Since  this 
enactment,  even  tliough  the  jury  negative  the  fact  of  emission,  or  the  circumstances  be 
proved  to  have  been  such  as  that  no  emission  did  or  could  take  place,  the  offence  is 
complete.    Rex  v.  Coze,  cited  pust. 

Any,  the  sligiitest,  penetration  is  sufficient,  even  though  it  do  not  break  the  hymen. 
Rex  V.  Russen,  1  East,  P.  C.  438. 

Though  it  is  not  necessary  in  order  to  complete  the  offence  of  rape,  that  tlie  hymen 
should  be  ruptured,  provided  that  it  is  clearly  proved  that  there  was  penetration;  yet 
where  that  which  is  so  very  near  to  the  entrance  has  not  been  ruptured,  it  is  very  diffi- 
cult to  come  to  the  conclusion  that  there  'has  been  penetration,  so  as  to  sustain  the 
charge.    Reg.  v.  McRue,  cited  supia. 

In  a  case  of  rape  if  there  has  been  penetration,  the  jury  ought  to  convict  of  the  capi- 
tal offence,  even  though  the  penetration  has  not  proceeded  to  the  rupture  of  the  hyrnen. 
Reg.  v.  Hughes,  9  Car.  Sf  P.  752.  Confirmed  by  the  judges;  and  the  case  of  Rex  v. 
Gammon,  5  Car.  S(  P.  3"J1,  held  to  be  no  authority,  Gurney,  B.  concurring.    Ih. 

Since  the  Stat.  9  Geo.  IV.  c.  31,  the  offence  of  rape  is  made  out  by  proof  of  penetra- 
tion ;  and  in  such  case  a  prisoner  must  be  found  guilty,  although  there  was  no  emission, 
and  although  he  did  not  withdraw  himself  merely  because  he  was  satisfied.  Rex  v. 
Jennings,  4  Car.  S(  P.  249,  1  Lewin,  C.  C.  93. 

The  9  Geo.  IV.  c.  31,  s.  18,  does  not  make  emission  unnecessary  to  complete  the 
offence  of  rape.  Rex  v.  Russell,  1  M.  &f  Rob.  122.  See  Rex  v.  Coulthart,  I  Lewin,  C.  C. 
94.  But  in  case  of  Rex  v.  Cox,  5  C.  Sf  P.  297,  1  Mood.  C.  C.  R.  337,  which  is  subsequent 
to  all  these  cases,  the  jury  found  that  there  had  been  penetration,  but  there  had  not  l)een 
any  emission  from  the  prisoner,  and  the  fifteen  judges  held  that  the  prisoner  was  riglitlj 
convicted  of  rape.     See  Rex  v.  Reekspear,  1  Muud.  C,  C.  R.  342. 

Qu&re,  if  emission  be  expressly  negatived,  the  offence  of  rape  is  complete  under 
9  Geo,  IV.  r.  31,  fi.  18.     Brooke's  case,  2  Leicm,  C.  C.  267. 

In  a  case  of  rape  since  the  passing  of  tlie  statute  9  €ieo.  IV.  c.  31,  s.  18,  the  only 
question  for  the  jury  is,  whether  the  private  parts  of  the  man  did  or  not  enter  into  the 
person  of  the  woman ;  and  the  reason  for  the  limitation  to  that  single  inquiry  seems 
to  be,  that  it  was  thought  that  the  law  was  holding  itself  up  to  contempt  by  having  the 
subtle  and  critical  subjects  of  emission,  &c.  discussed  before  judges  and  juries.  There- 
fore, thougli  it  appear  from  the  evidence  beyond  all  possibility  of  doubt  that  the  party 
was  disturbed  immediately  alter  penetration,  and  before  the  completion  of  his  purpose, 
yet  he  must  be  found  guilty  of  having  committed  the  complete  offence  of  rape.  R^g.  v. 
Allen,  9  Car.  &f  P.'^l. 

Proof  of  injectio  serninis,  as  well  as  penetration,  was  essential  in  an  indictment  for 
rape  before  the  Stat.  9  Geo.  IV.  c.  31.  Rex  v.  Hill,  1  East,  P.  C.  439;  5'.  P.  Rex  v. 
Cave,  I  East,  P.  C.  438 ;  but  see  R'X  v.  Sheridan,  1  Ea&t,  P.  C.  438 ;  Rex  v.  Harm, 
wood,  i  East,  P.  C.  440 ;    I  Russ.  C.  6f  M.  560. 

Before  the  Stat.  9  Geo.  IV.  c.  31,  s.  18,  if  something  occurred  to  create  an  alarm  to  a 
party  while  he  was  perpetating  the  offence  of  a  rape,  it  was  left  to  the  jury  to  say, 
whetlier  he  left  the  body  re  infectd  because  cff-  the  alarm,  or  whether  he  left  it  because 
his  purpose  was  accomplished.  Rex  v.  Burrows,  R.  &  R.  C.  C.  519;  1  Russ. 
C.  4-itf.  561. 

In  case  of  rape,  <fcc.  the  capital  offence  is  completed  if  there  be  penetration,  although 
there  has  been  no  emission,  and  the  prisoner  has  been  interrupted  in  the  commission  of 
the  offence.     Rex  v.  Coxins,  6  Car.  <Sc  P.  351. 

If  in  a  case  of  rape  the  jury  are  satisfied  that  non  resistance  on  the  part  of  the  prose- 
cutrix proceeded  merely  from  her  being  overpowered  by  actual  force,  or  from  her  not 
being  able,  from  want  of  strength,  to  resi>t  any  longer,  or  that  from  the  number  of  per- 
sons  attacking  her,  she  considered  resistance  dangerous  and  absolutely  useless,  the  jury 
ought  to  convict  the  prisoners  of  the  capital  charge;  but  if  they  think  from  the  whole  of 
the  circumstances  that  although  when  the  prosecutrix  was  first  laid  hold  of,  it  was 
against  her  will,  yet  she  did  not  resist  afterwards,  because  she  in  some  degree  consented 
VOL.  I.-;— 54 


628  HISTORIA  PLACITORUM  CORONA. 

The  essential  words  in  an  indictment  of  rape  are  rapuU  ($•  carna- 
liter  cognovit,  bi.it  carnuUter  cognovit,  nor  any  other  circimiloculion 

to  what  was  afterwards  done  to  her,  they  ought  to  acquit  the  prisoners  of  the  capital 
charge,  and  convict  tliem  of  an  assault  only.     Ri^g.  v.  Hallet,  9  Car.  iSf  P.  748. 

At  the  time  when  the  9  Geo.  IV.  c.  31.  passed,  it  is  perfectly  clear  that  in  order  to 
constitute  the  crime  of  rape,  tliere  must  have  been  both  penetration  and  emission,  conse- 
quently it  lay  upon  the  prosecutor  either  to  give  express  evidence  of  actual  emis.sion,  or 
to  prove  sucli  facts  as  were  sufficient  to  induce  the  jury  to  infer  that  emission  had  actu- 
ally taken  place.  In  some  cases  the  woman  was  unable  to  prove  emission,  either  be- 
cause she  did  not  perceive  it,  or  (as  was  the  case  in  Rex  v.  Frcston,  Stafford  Spr.  Ass, 
1828,  where  a  father  was  convicted  of  ravishing  two  of  his  daughters)  because  alter 
penetration  she  fainted  away.  In  such  cases  it  was  tlie  course  to  leave  it  to  the  jury  to 
infer  tiiat  emission  had  taken  place,  as  there  was  nothing  to  show  that  the  prisoner  had 
not  fully  completed  his  purpose,  and  acquittals  sometimes  took  place  because  juries  were 
unwilling  to  infer  a  fact  which  had  not  been  clearly  proved,  especially  when  such  an  in- 
ference subjected  the  prisoner  to  capital  punishment.  Such  being  the  state  of  things,  the 
9  Geo.  IV.  c.  31,  was  passed;  and  the  question  is  whether  that  act  has  altered  the  crime 
of  rape  so  that  instead  of  consisting  of  both  penetratiorl  and  emission,  it  now  consists  of 
penetration.  According  to  all  tlie  recent  decisions  (see  Rex  v.  Great  Bently,  10  6.  iSf  C. 
520;  Wiiliams  v.  Roberts,  5  Ttjrw.  421;  Flight  v.  Thomas,  11  Ad.  &;  E.  688.)  this 
oufht  to  be  determined  upon  the  grammatical  construction  of  the  words  of  the  statute 
alone.  In  sect.  16  there  is  a  separate  substantive  clause  providing  that  "every  person 
convicted  of  tlie  crime  of  rape  shall  suffer  death  as  a  felon."  Now  here  the  crime  is 
treated  as  one  as  clearly  settled  and  defined  as  the  crime  of  murder,  i.  e.  as  consisting  of 
both  penetration  and  emission.  It  is,  however,  upon  sect.  18  that  the  question  mainly 
turns.  That  section  recites  that  "  upon  trials"  for  the  crimes  {inter  alia)  of  rape,  offenders, 
(that  is  persons  guilty  of  these  crimes)  "frequently  escape  by  reason  of  the  difficulty  of 
the  proof  which  has  been  required  of  the  completion  of  those  several  crimes,"  (the  mis- 
chief therefore  was  tiiat  persons  who  had  committed  rapes  consisting  both  of  penetration 
and  emission,  liad  escaped  by  reason  of  the  difficulty  of  proving  both  penetration ^and 
emission)  "for  remedy  thereof,  (that  is  to  remedy  the  escape  of  persons  who  had  com- 
mitted such  rapes  consisting  oi^  both  penetration  and  emission,)  be  it  eiiacted  thai  it  shall 
not  be  necessary  in  any  of  these  cases  to  prove  the  actual  emission  of  seed,"  (not  that 
emission  shall  be  no  part  of  the  crime)  "but  that  tlie  carnal  knowledge"  (i.  e.  both  pene- 
tration and  emission)  "shall  be  deemed"  (presumed)  "complete  upon  proof  of  penetration 
only."  Now,  it  is  to  be  observed  that  there  is  no  intimation  whatever  of  any  intention  to 
alter  the  crime  :  on  the  contrary,  the  clause  evidently  treats  the  crime  as  continuing  the 
same,  but  is  I'ramed  to  render  the  means  of  proving  it  more  easy.  It  is  submitted  that 
upon  the  true  construction  of  this  clause,  its  effect  is,  that  whereas  before  the  passing  of 
the  statute  the  prosecutor  was  bound  not  only  to  prove  penetration,  but  to  go  further  and 
give  such  evidence  as  satisfied  the  jury  that  emission  had  actually  taken  place,  he  is  now 
only  bound  to  prove  penetration  :  on  proof  of  which  a  presumption  arises  by  virtue  of 
the  clause  that  emission  has  also  taken  place,  but  that  this  presumption  is  liable  to  be 
rebutted,  by  showing  that  in  fact  emission  did  not  take  place.  In  other  words,  all  the 
prosecutor  has  now  to  prove  is  penetration,  and  upon  that  the  jury  ought  to  convict, 
unless  it  be  proved  by  the  prisoner  that  he  did  not  in  fact  complete  his  purpose.  This  is 
the  view  which  seems  to  have  been  taken  by  Alderson,  B.  in  Coultharfs  case,  (1  Russ. 
G,  4"  M.  note,  p.  683,  3(/.  ed.)  and  it  is  ■submitted  is  the  correct  construction  of  the 
clause.  There  are  several  statutory  provisions  of  a  similar  character,  as  the  23  Geo. 
II.  c.  11.  s.  3.  for  remedying  the  difficulties  attending  prosecutions  for  perjury,  and  the 
statutes  which  make  a  certificate  of  the  clerk  of  assize  evidence  of  a  previous  conviction, 
&c.  and  it  is  evident  that  none  of  these  alter  the  offence,  but  only  facilitate  the  proof  of 
it.  At  all  events,  the  clause  does  not  alter  the  crime,  and  it  is  against  all  the  authorities 
to  hold  that  felony  can  be  created  by  an}'  but  express  and  clear  words.  In  Searle  v. 
miliams,  Hob.  2Lt3,  it  is  laid  down  that  "  felonies  and  capital  crimes  shall  never  be 
made  by  doubtful  and  ambiguous  words."  And  in  Coinlein''s  case,  Hob.  210,  it  was 
"resolved  clearly  that  no  statute  could  be  extended  to  life  by  doubtful  and  ambiguous 
words;"  and  see  Hawk.  F.  C.  c.  41.  s.  3.  In  Rex  v.  Cale,  R.  4-  M.  C.  C.  R.  11,  it  was 
held  by  a  majority  of  the  judges  that  the  3  Geo.  IV.  c.  24.  s.  3.  which  provided  that  the 
receiving  stolen  goods  should  be  '•'■  deemed  and  construed  to  be  felony,"  did  not  create  a 
felony';  and  although  that  case  be  overruled  by  Rex  v.  Solomons,  R.  iV  ^t-  ^-  ^'  ^-  292, 
still  it  is  a  strong  authority  to  show  how  clear  and  distinct  the  words  which  create  a 


HISTORIA  PLACITORUM  CORONA.  628 

without  the  word  rnpiiit  are  not  sufficient  in  a  legal  sense  to  express 
rape.   1  H.  6.  1.  a.  9  E.  4.  26.  a.[2] 

new  felony,  are  required  to  be  even  where  the  words  be  such  as  to  leave  no  doubt  that  it 
was  inlendcd  to  create  such  felony.  It  may  be  added  that  the  decision  in  Rex  v.  Cox 
gives  a  great  facility  to  convict  the  innocent  in  those  cases  which  not  uiifrequently 
occur,  where  the  parties  being  accidentally  discovered  in  coitu,  the  woman  makes  a 
false  charge  in  order  to  save  her  character.  Greave^s  note,  1  Russ.  on  Vr,  &  M.  685 
3d  Land.  ed.  ^  blh  Am.  ed.  1845. 

In  this  country  proof  of  emission  seems  never  to  have  been  required.  The  State  v. 
Le  Blanc,  3  Brev.  Rep.  339.  In  several  instances  it  has  been  held  that  as  the  essence 
of  the  crime  is  the  violence  done  to  the  person  and  feelings  of  the  woman,  which  is 
completed  by  penetration  without  emission,  it  is  sufficient  to  prove  penetration  only. 
Pennsylvania  v.  Sullivan,  Add.  R.  143.  Stroud  v.  Com.  \l  S.  Sf  R.  177.  Com.  v.  Thomas 
1   Virginia  Cas.  307. 

The  slightest  penetration  is  sufficient.    Rex  v  Russen,  cited  supra. 

In  JSew  York,  penetration  alone  without  emission  will  support  a  conviction  under  the 
Rev.  Stat.    2  Rev.  Slat.  663. 

For  the  statutes  of  the  U.  S.  see  the  Crimes  Act,  3d  March,  1825,  sect,  4  and  sect  7. 

For  the  Massachusetts  statutes,  see  Rev.  Stat,  c.  125,  s.  18,  ch.  137.  s.  11.  As  to  the 
construction  of  this  stat.  see  Com.  \.  Cooper,  15  Mass.  R.  197;  and  see  Com.  v.  Robu 
12  Pick.  R.  496,  507,  though  this  is  upon  an  earlier  statute,  still  as  thev  are  in  pari 
materia,  the  authority  is  valuable.  Com.  v.  Goodhue,  2  Mete.  Rep.  193.  Com.  v.  Bruce 
6  Penn.  L.  J.  236.  S.  P.  on  a  like  act. 

For  the  New  York  statutes,  see  2  Rev.  Stat.  603.  sects.  22  &,  23. 

For  the  New  Jersey  statutes,  see  Statutes  of  N.  J.  1847.  tit.  "  Crimes  and  Punishments  " 
p.  259.  §10. 

For  the  Pennsylvania  statutes,  see  Stroud's  Purd.  Dig.  904.  §  4.  Gth  ed.;  Id.  943. 
Ith  ed.  §  36;  Act  of  April  23d,  1829;  Stroud's  Purd.  Dig.  992.  1th  ed. 

For  statutes  of  Virginia,  see  Rev.  Code,  c.  158,  pect,  1  ;  Id.  c.  258,  sect.  3;  Act  of 
1837,  c.  71.  •' 

[^]  It  must  be  alleged  that  the  rape  was  committed  with  violence  and  against  the  will 
of  the  woman.  3  Chit.  C.  L.  815.  Also,  that  she  was  ravished,  alleging  merely  that  the 
defendant  carnally  knew  her  is  not  sufficient.  1  Russ.  C.  ^  M.  6«6.  It  is  proper  to 
allege  that  the  defendant  carnally  knew  her,  but  the  omission  would,  it  seems,  be  cured  by 
verdict.  Rex  y.  Warren,  1  Russ.  C.  ^  M.3d  ed.  686;  and  see  2  Inst.  180;  2  Hawk.  P. 
C.  c.  25.  s.  56.  An  indictment  charging  that  the  defendant  in  and  upon  A.  B.  "  feloni- 
ously and  Wolently  did  make  [omitting  the  words  "an  assault,"]  and  her,  the  said  A,  B. 
then  and  there  against  her  will,  violently  and  feloniously  did  ravish  and  carnally  know," 
&.C.  was  held  sufficient  in  arrest  of  judgment.  Reg,  v.  Allen,  9  C  Sf  P.  521.  It  seems 
necessary  to  conclude  that  the  offence  was  against  the  form  of  the  statute.  1  Russ  C  Se 
M.  687.  3d  ed;  see  Rex  v.  Scott,  R.  <^  R.  415. 

In  Rex  V.  Burgess  and  others,  Chester  Spr.  Ass.  1813,  upon  an  indictment  charging 
three  persons  jointly  with  the  commission  of  a  rape,  an  objection  was  taken  that  three 
persons  could  not  be  guilty  of  the  same  joint  act,  but  it  was  overruled  upon  the  ground 
thai  the  legal  construction  of  the  averment  was  only' that  they  had  done  such  acts  as 
subjected  them  to  be  punished  as  principals  in  the  oiTence.  The  execution  was,  how- 
ever,  respited,  probably  with  a  view  to  enable  the  learned  judges  to  consult  other  autho- 
rities on  the  accuracy  of  their  opinion;  but  the  prisoners  were  afterwards  executed. 
5  Ev.  Col.  Stat.  CI.  6.  p.  244.  note  (17).  2d  ed.  and  see  1  Russ.  C.  S(  M.  801. 

A  general  conviction  of  a  prisoner,  charged  both  as  pri-ncipal  in  the  first  degree,  and 
as  aider  and  abetter  of  other  men  in  rape,  is  valid,  on  the  count  charging  him  as  prin- 
cipal. And  on  such  an  indictment  evidence  may  be  given  of  several  rapes  on  the  same 
woman,  at  the  same  time  by  the  prisoner  and  other  men,  each  assisting  the  other  in  turn, 
without  putting  the  prosecutor  to  elect  on  which  count  to  proceed.  Rex  v.  Folkes,  R.  & 
M.  C.  C.  354;  and  see  Reg.  v.  Gray,  7  C.  Sf  P.  164. 

An  indictment  is  good  which  charges  that  A.  committed  a  rape,  and  that  R.  was  pre- 
sent  aiding  and  assisting  hirn  in  his  commission  of  the  felony.  Reg.  v.  Crisham,  1  Car. 
4"  M.  187.  In  such  case  the  party  aiding  may  be  charged  either  as  he  was  in  law,  a 
principal  in  the  first  degree,  or  as  he  was  in  fact,  a  principal  in  the  second  degree.  lb. 
See  Arch.  Crim.  P.  C.  481.  10(A  Lond.  Ed. 


628  HISTORIA  PLACITORUM  CORONA. 

To  make  a  rape  there  must  be  an  actual  penetration  or  res  in  re, 
(as  also  in  bnggery)  and  therefore  eiiiissio  seniinis  is  indeed  an  evi- 
dence of  penetration,  but. singly  of  itself  it  makes  neither  rape  nor 
bnggery,  but  it  is  only  an  attempt  of  rape  or  bnggery,  and  is  Sjcverely 
punished  by  fine  and  imprisonment.     Co.  P.  C.  cap.  10.  p.  59. 

But  the  least  penetration  maketh  it  rape  or  buggery,  yea  altho 
there  be  not  emissio  seminis.  Co.  P.  C.  uhi.supru;  the  old  expres- 
sio!i  was  abstiilit  ei  virginiiatem,  and  so\nQ{\n\es pucellagium  8uurn. 
Bract.  Lib.  Ill.(e) 

And  therefore  I  suppose  the  case  in  my  lord  Coke's  12  Pep.  36. 
5  Jac.  that  saith,  there  must  be  both,  inz.  penetratio  <§'  emissio  semi- 
nis to  make  a  rape  or  buggery,  is  mistaken,  and  contradicts  what  he 
saith  in  his  pleas  of  the  crown;  and  besides,  it  is  possible  a  rape  may 
be  commilteii  by  some,  quihns  virgse  erectio  adsit,  <§'  emissio  seini- 
nis  ex  quodam,  defectu  desi/,  as  physicians  tell  us. 

If  t/^.  actually  ravish  a  woman,  and  B.  and  C.  were  present,  aid- 
ing, and  abetting,  they  are  all  equally  principal,  and  all  subject  to  the 
same  punishment  both  at  common  law  and  since  the  statute  of  ("Feslm. 
2.  de  quo  infra. 

it  appears  by  Bracton  uhi  svpra,  that  in  an  appeal  of  rape  it  was 
a  good  exception,  quod  ante  diem  S,'  annum  contentas  in  appello 
kabuit  earn  ul  concubinam  S,-  amicum.  t^'  inde  ponil  se  super  pa- 
triam,  and  the  reason  was,  because  that  unlawful  cohabitation  car- 
ried a  presumption  in  law,  that  it  was  not  against  her  will. 

But  this  is  no  exception  at  this  day,  it  may  be  an  evidence  of  an 
assent,  but  it  is  not  necessary  that  it  should  be  so,  for  the 
r  629  "I  woman  may  forsake  that  unlawful  course  of  life. 

But  the  husband  cannot  be  guilty  of  a  rape  committed  by 
himself  upon  his  lawful  wife,  for  by  their  nuitual  matrmionial  consent 
and  contract  the  wife  hath  given  up  herself  in  this  kind  unto  her  hus- 
band, which  she  cannot  retract. [3] 

t^.  the  husband  of  B.  intends  to  prostitute  her  to  a  rape  by  C. 
against  her  will,  and  C.  accordingly  doth  ravish  her,  ./^.  being  present, 
and  assisting  to  this  rape:  in  tliis  case  these  points  were  resolved, 
1.  That  this  was  a  rape  in  C.  notwithstanding  the  husband  assisted 
in  it,  for  tho  in  marriage  she  hath  given  up  her  body  to  her  husband, 
she  is  not  to  be  by  him  prostituted  to  another.  2.  That  the  husband 
being  present,  aiding  and  assisting,  is  also  guiliy  as  a  principal  in 
rape,  and  therefore,  altho  the  wife  cannot  have  an  appeal  of  rape 
against  her  husband,  yet  he  is  indictable  for  it  at  the  king's  suit  as  a 
principal.     3.  That  in  tins  case  tlie  wife  may  be  a  witness  against  her 

(e)  De  corona,  cap.  28./.  147  6. 

[3]  A  man  having^  connexion  will)  a  woman  under  a  deceit  practi.«cd  on  -her,  she  sup- 
posinsf  him  to  be  her  iiusband,  i.s  not  ffuilty  of  the  offence  of  rape.  Rfix  v.  Jackiion,  R.  Sf 
Ry.  487;  Rex  V.  Saunders,  8  Car.  Sf  /^  265;  Rrx.v.  Williams,  Id.  286.  He  might, 
however,  be  convicted  of  an  assault  under  7  U  m.  IV.  Sf  1  Vict,  c,  85.  p.  1 1  ;  Reg.  v. 
Stanton,  1  Car.  Sf  Kir.  Rep.  415;  Hays  v.  The  I'eople,  1  HilVs  N.  Y.i2e/>.  351;  Tlie 
People  V.  Metcalf,  1  Wheeler's  Cr.  Cas.  378.  381. 


HISTORIA  PLACITORUM  CORONA.  629 

husband,  and  accordingly  she  was  admitted,  and  A.  and  C.  were  both 
executed.     8  Car.  1.  Casus  comifis  Cas//e/iaven.{f)[4'\ 

If  ./^.  by  force  take  B.  and  by  force  and  menace  compel  ber  to 
marry  him,  and  then  with  force  J?,  hath  the  carnal  knowledge  of  ^. 
against  her  will,tho  this  marriage  he  voidable,  yet  it  is  not  so  simply 
void  as  to  enable  fier  to  maintain  an  appeal  of  rape  against  A.  for  she 
may  by  her  consent  affirm  this  voidable  marriage,  and  therefore  in 
the  like  Case,  Not.  Pari.  15  H.  6.  n.  15.  there  was  a  special  act  of 
parliament  to  enable  the  lady  Isabel  Buffer  to  bring  an  appeal  of 
rape  against  IVilliam  Pull  in  that  case  notwithstanding  that  mar- 
riage;  but  that  marriage  had  been  dissolvable  by  a  declaratory  sen- 
tence in  conrt  christian,  becanse  obtained  by  a  plain  force;  and  if 
such  a  dissolution  of  the  marriage  had  been  obtained,  then  it  seems 
to  me,  that,  if  the  carnal  knowledge  of  her  were  forcible  and  against 
her  will  as  well  as  the  marriage,  that  rape  was  punishable  as  well  by 
appeal  at  the  suit  of  the  lady,  as  by  indictment  at  the  suit  of  the  king, 
without  the  aid  of  an  act  of  parlian)ent,  for  it  was  really  a  rape,  only 
the  marriage  de  facto  was  an  impediment  of  its  punishment 
so  long  as  de  facto  the  marriage  continued,  but  now  that  [  630] 
impediment  being  removed  by  the  declaratory  sentence,  and 
the  marriage  made  void  ah  initio,  it  is  all  one  as  if  it  had  never  been, 
and  tho  relation  be  a  legal  fiction  and  intenfa  ad  umtm,  yet  in  this 
case  the  marriage  and  carnal  knowledge  being  one  intire  act  of  force, 
and  consecutive  one  upon  another,  in  the  real  effect  of  that  first  force, 
it  shall  remain  punishable  as  if  there  had  been  no  marriage  at  all; 
but  the  statute  of  3  H.  7.  cap.  2.{q)  hatii  provided  a  remedy  in  this 
case,  so  that  this  difficulty,  need  not  come  in  question. 

An  infant  under  the  age  of  fourteen  years  is  presumed  by  law  un- 
able to  commit  a  rape,  and  therefore  it  seems  cannot  be  guilty  of  it, 
and  tho  in  other  felonies  malitia  supplet  setatem  in  some  cases  as 
ha^  been  shewn,  yet  it  seems  as  to  this  fact  the  law  presumes  him 
impotent,  as  well  as  wanting  discretion. [5] 

But  he  may  be  a  principal  in  the  second  degree,  as  aiding  and 
assisting,  tho  under  fourteen  years,  if  it  appear  by  sufficient  circum- 
stances, that  he  had  a  mischievous  discretion,  as  well  as  in  other 
felonies.[6] 

Thus  far  of  the  nature  of  rape,  and  who  may  be  culpable  of  it. 
Now  we  will  consider  upon  whom  it  may  be  committed,  and  some 
other  considerations  touching  this  fact. 

(/)  See  Hat.  115,  Rush.  Coll.  Vol.  II.  p.  93.— 101.  State  Tr.  Vol.  I.  p.  366.  12 
Mod.  340. 

{g)  By  lliis  statute  a  forcible  taking  away  and  marrying  a  woman  against  her  will  is 
made  felony. 

[4]  1  Russ.  on  C.  ^  M.  676.  3d  Ed. 

[5]  See  Com.  v.  Lniigan,  2  Bost.  Law  Reporter,  49.  Per  Thatcher,  J.;  Rex  v.  Brom. 
low,  2  Mood.  C.  C.  12^  ;  Rex  v.  Groomridge,  7  Car.  S^  Pay.  R.  562;  Best  on  Presump. 
22;  Reg.x.  I'hi'lips,  8  Car.  S^  Pay.  Ti^;Rex  v.  Jordan,  9  Id.  118;  sed  vide  Com,  v. 
Green,  2  Pick.  R.  380;  ante  p.  26.  note. 

[6]  Lord  Audley's  case,  3  how.  St.  Tr.  419;  Rex  v.  Elders^aw,  3  Car.  Sf  P.  391. 


630  HISTORIA  PLACITORUM  CORONA. 

It  was  doubted,  whether  a  rape  conld  be  committed  upon  a  female 
child  under  ten  years  old,  Mich.  13  <S-  14  Eliz.  Dy.  304.  a.  By  tlie 
statute  of  IS  Eliz.  cap.  7.  it  is  declared  and  enacted,  "  Tliat  if  any 
person  shall  unlawfully  and  carnally  know  and  abuse  any  woman- 
child  under  the  age  of  ten  years,  it  shall  be  felony  without  the  benefit 
of  clergy." 

My  lord  Coke  adds  the  words,  either  with  her  will  or  against  her 
laill,  as  if  were  she  above  the  age  of  ten  years,  and  with  her  will,  it 
should  not  be  rape;  but  the  statute  gives  no  such  intimation ;  only 
declg-res  tliat  such  carnal  knowledge  is  rape. 

And  therefore  it  seems,  if  she  be  above  the  age  of  ten 
|]  631  []  years  and  under  the  age  of  twelve  years,  tho  she  consent, 
it  is  rape.  1.  Because  the  age  of  consent  of  a  female  is  not  ten 
but  twelve.  2.  By  the  statute  of  fVestni.  1  cap.  13.  Roy  defend,  que 
nul  ne  ravise  ne  prigne  a  force  damsel  deins  age,  ne  per  son  grce  ne 
sans  son  grce;  and  my  lord  Coke'in  his  exposition  upon  that  statute(/^) 
declares,  that  these  words  deiiis  age  must  be  taken  for  her  age  of 
consent,  viz.  twelve  years,  for  that  is  her  age  of  consent  to  marriage, 
and  consequently  her  consent  is  not  material  in  rape,  if  she  be  under 
twelve  years  old,  tho  above  ten  years  old,  altho  tliose  words  are  by 
some  mistake  crept  into  my  lord  Coke\s  definition  of  rape,  Co.  P.  C. 
cap.  11.  but  if  she  be  above  the  age  of  twelve  years,  and  consenting 
at  the  time  of  the  fact  committed,  it  is  not  felony.[7] 

(A)  2  Instit.  182.    See  4  Bl.  Com.  212. 


[7]  Attempting  to  carnally  know  and  abuse  a  girl  between  the  ages  often  arid  twelve, 
is  not  an  assault,  if  tlie  girl  consents  to  all  that  is  done,  but  is  a  misdemeanor.  Reg.  v. 
Mortin,  9  Car.  Sf  P.  213 ;  2  Mood.  C.  C.  R.  123.  The  person  making  such  attempt,  with 
the  consent  of  tlie  girl,  is  not  indictable  for  an  assault,  but  is  indictable  for  the  misde- 
meanor of  attempting  to  commit  the  misdemeanor  of  carnally  knowing  and  abusing^er. 
lb.  On  an  indictment  for  attempting  to  carnally  know  and  abuse  a  girl  under  ten  years 
of  age,  with  a  count  for  a  common  assault,  the  attempt  was  proved,  but  it  could  not  be 
shown  tliat  the  child  was  under  ten  years  of  age,  and  it  also  appeared  that  no  violence 
was  used  by  the  prisoner,  and  no  actual  resistance  made  by  the  girl:  Held,  that  although 
consent  on  the  part  of  the  girl  would  put  an  end  to  the  charge  of  assault,  yet  there  was 
a  great  difterence  between  consent  and  submission,  and  that,  although  in  the  case  of  an 
adult  submitting  quietly  to  an  outrage  of  this  kind,  would  go  far  to  show  consent,  yet, 
that  in  the  case  of  a  child,  the  jury  should  consider  whether  the  submission  of  the  child 
was  voluntary  on  her  part,  or  was  the  result  of  fear,  under  the  circumstances  in  which 
she  was  placed.  Reg.  v.  Day,  9  Car.  «Sf  P.  722. 

Where  the  prisoner  decoyed  a  female  child  into  a  building  for  the  purpose  of  ravi.shing 
her,  and  was  there  detected,  while  standing  within  a  few  feet  of  her,  in  a  state  of  inde- 
cent exposure,  it  was  held,  that  though  there  was  no  evidence  of  his  having  actually 
touched  her,  he  was  properly  convicted  of  an  assault  with  intent  to  ravish.  Hays  v.  The 
People.  1  HiWs  N.  Y.  Rep.  351.  Reg.v.Neale,  1  Car.  Sf  Kir.  591.  Arcbb,  Crim.Pl.  484. 
10th  Land.  Ed. 

An  indictment  in  the  first  count  charged  the  defendant  with  having  assaulted  "  E.  R. 
an  infant,  above  the  age  of  ten  years,  and  under  the  age  of  twelve  years,"  with  intent  to 
carnally  know  and  abuse  her;  and  in  the  second  count  charged  that  the  defendant  ''  un- 
lawfully did  put  and  place  the  private  parts  of  him,  the  said  T.  M.  against  the  private 
parts  of  her,  the  said  E.  R.  and  did  then  and  there  dniawfully  attempt  and  endeavour  to 
carnally  know  and  abuse  her,  the  said  E.  R."  Held,  that  the  second  count  was  bad,  as  it 
did  not  allege  that  E.  R.  was  between  the  ages  of  ten  and  twelve :  Held  also,  that  the 
words  "  the  said  E.  /^."  merely  meant  that  she  was  the  person  as  mentioned  in  the  first 


HISTORIA  PLACITORUM  CORONA.  631 

•  But  if  she  were  above  the  age  of  twelve  years,  and  consented  upon 
me.nace  of  death,  if  she  consented  not,  this  is  not  a  consent  to  excuse 
a  rape.  5  E.  4.  6.  a.  Dalt.  cup.  107  {i) 

And  therefore  that  opinion  of  Mr.  F/zic// cited  by  Daltonubi  sitprOf 
.  ajid  by  Stamford,  cap.  14.  fol.  24.  out  o(  Bri/fon,  that  it  can  be  no 
rape,  if  the  woman  conceive  with  cliild,  seems  to  be  no  law,  rnulier 
erihni  vi  oppressa  concipere  potest. 

If  the  woman  consented  not  at  the  time  of  the  rape  committed, 
bnt  consented  after,  she  shall  not  have  an  appeal  of  rape  by  the  statute 
of  fV-estm.  2.  cap.  34.  but  yet  the  king  shall  have  the  suit  by  indict- 
ment, and  by  the  statute  of  6  R.  2.  cap.  6.  if  she  have  a  husband,  he 
shall  have  an  appeal,  and  if  she  have  none,  then  her  father  or  other 
next  of  blood  shall  have  an  appeal  of  such  rape;  and  by  the  same 
statute  as  well  the  ravisher  as  the  ravished,  that  so  assented,  are  dis- 
abled to  have  any  dower,  inheritance  or  jointure;  and  the  next  of 
blood  of  such  ravisher  or  assenting  ravished,  to  whom  their  lands 
should  revert,  remain  or  fall  after  their  death,  shall  enter  upon  the 
same,  and  hold  it  as  an  estate  of  inheritance. 

But  an  assent  after  through  menace  of  death  is  not  such  an  assent, 
as  Incurs  this  penalty;  quod  vide  5  E.  4.  6.  a. 

As  in  other  felonies,  so  in  this  there  are  or  may  be  acces- 
saries before  and  after,  {ox  tlio  this  be  a  felony  by  act  of  par-  [  632  ] 
liament,  that  s[)eaks  only  of  those  that  commit  the  offense, 
yet  consequentially  and  incidentally  accessaries  before  and  after  Sive. 
included, and  so  in  every  new  statute  making  a  felony  without  speak- 
ing of  accessaries  before  or  after.  Co.  P.  C.  cap.  10.  p.  59.  and  so  in 
buggery. 

And  note,  that  at  the  time  of  the  making  of  the  statute  of  13  E.  1. 

,       .  (i)  New  Edit,  cap.  160.  p.  524. 


Cotint,  but  that  those  words  did  not  impart  into  the  second  count  the  description  of  E.  R 
with  respect  to  her  age.  Re^.  v.  Martin,  9  Car.  Sf  F.  215.  A  count  charging  A.  with  a 
rape,  as  a  principal  in  the  first  degree,  and  B.  as  a  principal  in  the  second  degree,  may 
be  joined  with  another  count,  charging  B.  as  principal  in  the  first  degree,  and  A,  as 
principal  in  the  second  degree.    Rex  v.  Gray,  7  Car.  Sf  P.  164. 

The  first  count  of  an  indictment  charged  an  assault  with  intent  to  ravish:  the  second 
a  common  assault.  The  record  went  on  to  state  that  the  jury  found  the  defendant  guilty 
of  the  misdemeanor  and  offence  in  the  said  indictment  specified,  in  manner  and  form  as 
by  Ihe  said  indictment  is  alleged  against  him,  and  the  judgment  was  imprisonment  and 
hard  labour:  Held,  on  writ  of  error,  that  the  "  misdemeanor"  was  novem  coUectivum,  and 
that  the  finding  of  the  jury  was  in  effect,  that  the  defendant  was  guilty  of  the  whole 
matter  charged,  and  that  the  judgment  was  therefore  warranted  by  the  verdict.  Rex  v. 
Fowell,  2  B.  1^  Adol.  75. 

The  words  "  forcibly  and  against  the  will,"  are  necessary  in  tiie  indictment.  See  Resr. 
V.  Stanton,  before  cited,  p.  628,  though  in  Pennsylvania  it  has  been  held  in  the  case  of 
Harmon  v.  The  Com.  12  Ser.  Sf  R.  69,  (Arc.  Com.  v.  Bennett,  2  Virg.  Cas.  235,)  that 
their  omission  was  not  fatal,  when  it  was  charged  that  the  defendants  "  feloniously  did 
ravish  and  carnally  did  know  her."  Where  an  indictment  for  a  rape  charged  that  the 
defendant  "  with  force  and  arms,  &c.  in  and  upon  one  Mary  Ann  Taylor,  in  the  poace 
of  the  State,  &c.  violently  and  felrtBiously  did  nuke  an  assault,  and  her  the  said  Mary 
Ann  Taylor,  then  and  tiiere  violently  and  against  her  will,  feloniously  did  ravish  and 
carnally  know,"  it  must  be  shown  with  certainty  that  Mary  Ann  Taylor  was  a  female 
The  State  v.  Farmer,  i  Iredell,  R.  224. 


632  HISTORIA  PLACITORUM  CORONA. 

rape  was  not  felony,  for  it  had  long  continued  under  the  nature  only, 
of  a  misdemeanor  and  not  a  felony,  and  therefore  it  is  not  at  this  day 
inqnirable  in  a  leet,  because  it  is  a  felony  nevvlv  created.  6  H.  7.4.  b. 
22  E.  4.  22.  a. 

The  regular  means  of  bringing  this  offense  to  judgment  was  either 
at  the  suit  of  the  king  by  indictment,  or  at  the  suit  of  the  parly  by 
appea^. 

The  indictment  ought  to  have  these  ingredients.  1.  It  must  be 
felonice.  2.  It  must  he  rupuit  &;  carnaUter  cognovit.  3.  It  must 
conclude  contra  formam  slaluti  13  4*  14  Eliz.  Dy.  304.  a.  See 
ante  p.  628.  note. 

It  may  be  prosecuted  by  indictment  at  any  time, /or  nullum  itm- 
pus  Qccurrit  re,s^i. 

An  appeal  of  rape  hes  for  the  party  ravished,  and  if  she  consent 
after  the  rape,  she  is  barred  of  her  appeal,  and  her  husband,  if  mar- 
lied,  or  the  next  of  kin,  if  single,  may  have  the  appeal  by  the  statute 
of  6  R.  2.  cap.  6.[S] 

If  the  next  of  km  were  the  ravisher,  his  next  of  kin  shall  have  the 
appeal  by  the  equity  of  the  statute  of  6  jR.  2.  28.  H.  6.  Coron.  459. 

As  to  the  appeal  of  the  party  ravished  two  things  are  necessary, 
1.  That  she  make  fresh  discovery  and  pursuit  of  the  oflense  and  ofien- 
dcr,  otherwise  it  carries  a  presumption  that  her  suit  is  but  malicious 
and  feigned;  this  Bracton  at  large  describes  Lib.  III.  cap.  2S.f.  147. 
a.  Cum  igitur  virgo  corrupta  fuerit  &  oppressa,  slatim  cum  factum 
lecens  fuerit  cum  clamore  &.  hutesio  debet  accurrere  ad  villas  vicinas, 
&  ibi  injuriam  sibi  illatam  probis  hominibus  ostendere,  sanguinem  & 
vestes  suas  sanguine  tincfas  &  vestium  scissuras,  &  sic  ire  debet  ad 
pra^positum  hundredi  .Sc  ad  servientem  domini  regis,  &  ad  coronatores 
&  vicecomitem,  &  ad  primum  comitatum  facial  appellum, 
[]  633]]  «§'C.  2.  That  the  appeal  be  speedily  prosecuted,  for  it  seems, 
that  a  year  and  a  day  be  not  allowd  in  this  appeal,  but  some 
short  time,  tho  it  be  not  defined  in  law  what  time,  but  lies  much  in 
the  discretion  of  the  court  upon  the  circumstances  of  the  fact,  yet  the 
statute  of  JVestm.  1.  cap.  13.  allowd  but  forty  days:  long  delay  of 
prosecution  in  such  a  case  of  rape  always  carries  a  presumption  of  a 
malicious  prosecution.  3.  If  the  wife  hath  once  consented  after,  her 
appeal  is  barred. 

By  the  statute  of  IS  Eliz.  cap.  7.  the  principals  in  rape  are  ousted 
of  clergy,  whether  they  be  principals  in  the  first  degree,  viz.  he  that 
committed  the  fact,  or  principals  in  the  second  degree,  viz.  present 
aiding,  and  assisting;  but  accessaries  before  and  after  have  their 
clergy.[9] 

Touching  the  evidence  in  an  indictment  of  rape  given  to  the  grand 
jury  or  petit  jury.[10] 


[8]  Appeal  for  rape  is  now  abolished.     See  59  Ge^  III.  c.  46.  4  Steph.  Com.  385. 
[9]  Abolished  by  7  &  8  Geo.  IV.  c.  28.  See  4  Slept.  Com.  121. 

[10]  Tl)e  fact  of  the  woman  having  made  a  complaint  after  the  commission  of  the 
alleged  rape  is  evidence,  but  not,  it  seems,  the  particulars  of  such  complaint :  R.  v.  Walker, 


HISTORIA  PLACITORUM  CORONA.  633 

The  party  ravislied  may  give  evidence  upon  oath,  and  is  in  law  a 
competent  witness;  but  the  credibility  of  her  testimony,  and  how  far 
forth  she  is  to  be  beheved,  must  be  left  to  the  jury,  and  is  more  or 
less  credible  according  to  the  circumstances  of  fact  tliat  concur  in  that 
testiniouy. 

2  Mno.  Sf  Rob.  212;  1  Russ.  C.  Sf  M.  -by  Greaves,  3d  ed.  689,  even  though  the  woman  is 
dead;  Retr.  v.  Megson,  9  C  ^  F.  420.  And  where  the  woman  is  absent,  it  is  not  allow- 
able to  prove  that  she  made  a  complaint  soon  after  the  alleged  rape  ;  for  such  evidence 
is  merely  confirmatory  of  the  story  of  the  woman,  and  no  part  of  the  res  gestcB.  Reg.  v. 
GuUridgfi,0  C.  Sf  I'.  471. 

The  defendant  may  give  evidence  of  the  woman's  notoriously  bad  characler,  for  want 
of  chastity  or  common  decency,,  or  that  she  had  before  been  connected  with  the  prisoner 
himself;  but  he  cannot  aive  evidence  of  any  otlier  particular  facts  to  impeach  her  chas- 
tity. Rrx  V.  Hodgson,  R.  Sf  R.  211;  I  Phil.  Ev  190;  Rex  v.  Clarke,  2  Stark.  243.  So 
what  she  herself  said  so  recently  after  the  fact,  as  to  yeclude  tlie  possibility  of  her  being 
practised,  has  been  holden  to  be  admissible  in  evidence  as  a  part  of  the  transaction,  but 
the  particulars  of  her  complaints  are  not  evidenee  of  the  trutli  of  her  statements.  Rex  v. 
Brazier,  I  East's  P.  C.  444;  Rex  v.  Clarke,  2  Sturk,  241.  The  woman,  however,  is  not 
compellable  to  answer  whether  she  had  any  connexion  with  other  men,  or  with  a  parti- 
cular  person  named;  nor  is  evidence  of  tier  liaving  liad  such,  connexion  admissible.  Rex 
V.  Hodgson,  R.  Sf  R.  211. 

On  tire  trial  of  an  indictment  for  rape,  it  was  held  that  the  prisoner's  counsel  might 
ask  the  prosecutrix  the  following  questions,  with  a  view  to  contradict  her,  "  Were  you 
not,  &c.  (since  the  time  of  the  alleged  offence)  walking  in  High  street,  at  Oxford,  to  look 
out  for  men?"  "  Were  you  not  on,  6lc.  (since  the  time  of  tiie  alleged  offence)  walking 
in  High  street  with  a  woman  reputed  to  be  a  common  prostitute?"  It  was  also  held, 
that  evidence  might  be  adduced  by  the  prisoner  to  show  the  general  light  character  of 
the  prosecutrix,  and  that  general  evidence  might  be  given  of  her  being  a  street  walker; 
but  semble,  that  evidence  of  specific  acts  of  criminality  by  her,  would  not  be  admissible. 
Rrx  V.  Barker,  S  C.  Sf  P.  589;  Rex  v.  Martin,  6    C.  S(  P.  562. 

The  party  grieved  is  so  much  considered  as  a  witness  of  necessity,  in  this  as  in  other 
personal  injuries,  that  if  one  man  assist  another  man  to  ravi.sh  his  own  wife,  she  is  ad- 
missible as  a  witness  against  hini.  Lord  Audley's  case,  3  HoweWs  St.  JV.  419,  cited  in 
1  East's  P.  C.  444, 

Punishment. — By  the  9  Geo.  IV,  c.  31,  s,  16,  this  offence  was  punishable  with  death; 
but  now  by  the  4  &.  5  Vict.  c.  56.  s.  3,  reciting  the  9  Geo.  IV.  c.  31.  ss.  16  &  17,  it  is 
enacted,  ''  That  from  and  afler  the  commencement  of  this  act  (ls<  October,  1841)  if  any 
person  sliall  be  convicted  of  any  of  the  said  offences  hereinbefore  last  specified,  such  per- 
son shall  not  be  subject  to  any  sentence,  judgment,  or  punishment  of  death,  but  shall, 
instead  of  the  sentence  or  judgment  in  and  by  the  said  act  hereinbefore  last  recited,  or- 
dered to  be  given  or  awarded  against  such  persons  convicted  of  the  said  last  mentioned 
offences,  or  any  of  them  respectively,  be  liable  to  be  transported  beyond  the  seas  for  the- 
term  of  his  natural  life."     As  to  punishment  of  accessaries,  see  9  Geo.  IV.  c,  31,  s.  31, 

Evidence. — A  prisoner  may  be  convicted  of  rape,  upon  the  unsupported  evidence  of  an 
infant  under  years  of  discretion,  if  the  jury  are  satisfied  that  the  evidenee  is  such  as  to 
leave  no  reasonable  doubt  of  the  prisoner's  guilt.  Anon  1  Russ.  C.  Sf  M.  556.  In  cases 
of  carnal  knowledge  of  children,  the  infant  witness,  though  under  seven  years  of  age,  if 
advised  of  the  nature  of  an  oath,  must  be  sworn.  Rex  v.  Brazier,  1  Leach,  C.  C.  199; 
1  East,  P.  C.  443.  And  see  Rex  v.  Bunnell,  1  East,  P.  C.  442. 

A  prisoner  was  charged  with  carnally  abusing  a  child  under  ten  years  old,  on  Febru. 
ary  5,  1832.  To  prove  the  child  under  ten  years  old,  an  examined  copy  of  the  register 
of  her  baptism,  on  February  9,  1822,  was  put  in,  and  the  child's  father  stated  that  he 
lelt  his  house  about  a  week  before  the  9th  of  February,  1822,  his  wife  not  being  then 
confined,  and  that  on  his  return  on  that  day,  he  found  this  child,  and  was  told  by  his 
wife's  mother  that  it  had  been  born  on  the  day  before:  Hfld,  that  this  was  not  sufficient 
evidence  of  the  child's  being  under  ten  years  old.  Rex  v.  Wedge,  5  Car.  ^  P.  298. 

On  the  trial  of  an  indictment  for  a  rape,  the  prosecutrix  may  be  ask^d,  whether  pre- 
viously to  the  commission  of  the  alleged  offence,  the  prisoner  had  not  intercourse  with 
her  by  her  own  consent.  Rex  v.  Marlin,  6  Car.  Sf  P.  562,  A  defendant  will  be  acquitted 


633  HISTORIA  PLACITORUM  CORON^E. 

For  instance,  if  the  witness  be  of  good  fame,  if  she  presently  dis- 
covered the  ofl'ense  made  pursuit  after  the  oflender,  shewed  circum- 
stances and  signs  of  the  injury,  whereof  many  are  of  that  nature,  that 
only  women  are  the  most  proper  examiners  and  inspectors,  if  the 
place,  wherein  the  fact  was  done,  was  remote  from  people,  iuhaln- 
tants  or  passengers,  if  the  offender  fled  for  it ;  these  and  the  like  are 
concurring  evidences  to  give  greater  probability  to  lier  testimony, 
when  proved  by  others  as  well  as  herself. 

But  on  tiie  other  side,  if  she  concealed  the  injury  for  any  consider- 
able time  after  she  had  opportunity  to  complain,  if  the  place,  where 
the  fact  was  supposed  to  be  committed,  were  near  to  inhabitants,  or 
common  recourse  or  passage  of  passengers,  and  she  made  no  outcry 
when  the  fact  was  supposed  to  be  done,  when  and  where  it  is  pro- 
bable she  might  be  heard  hv  others  ;  these  and  the  like  circumstances 
carry  a  strong  presumption,  that  her  testimony  is  false  or  feigned. 

If  the  rape  be  committed  upon  a  child  under  twelve  years 
[  634]  old,  whether  or  how  she  may  be  admitted  to  give  evidence 
may  be  considerable.(*) 

(*)  For  she  might  at  that  age  maintain  an  appeal  pro  raptij,  Pasch.  33.  E.  1.  Rot.  16. 
in  dorso.  London.  Coram  Rige.  Ja7nes  Pochin  merchant  was  attached,  and  brought 
Cornm  Rege  to  answer  to  Isabel  daughter  of  Emma  de  Lnngeleijr.  de  raptu  «.y  pace  reiiis 
fractd,  who  appeal'd  him  alter  tiiis  marmer,  per  qucndatn  narratorem  suiim  diren^, — 
Isabella  yi/!7a  Emmae  de  L'angcleye,  de  state  novem  annoruin  S^'  dimidii  dicit,  quod  pr(t- 
dictus  Jacobus  die  dominica  proximd  post  fe stum  sancti  Martini,  anno  R.  R.  E.  33,  apnd 
London  in  altd  strata  regis  ex  oppositu  ecclcsicc  sancti  Beneilicti  de  Scherhog  liora  vesper- 
tina  ipsam  Isabellam  cepit,  ^  in  qiiddam  tab'ernd  sua  portamty  ^  contra  pacem  domini 
reiris  cittii  ed  concuhuit,  ^  virginitatem  siiam  rapttit;  ^-  petit  quod  jastitinrii  domini  regis 
super  hoc  sihi  facia nt  justitiam.  <^"  remedium.  Et  queritiir,  quod  pradicta  transgressjo 
sibi  facta  fuit  die  ^  anno  pncdictis  ad  dampnum  ipsius  Isabella;  centum  liirarum,  i^c. 
Et  prcedictus  Jacobus  venit,'^-  defendit  oinnem  feloniam,  raptum,  &^c.  El  pelis  ullocan- 
tiam  de  appello  ipsius  Isabellai ;  deslcut  ipsum  Jacobum  per  verba  in  appello  usualia,  Sf 
necessaria,  ac  convenientia,  non  appMat,  Et  quia  constat  curia  quod  appellum,  ^c.  in- 
sufficiens  est,  consrderatum  est,  quod  pradicla  Isabella  committntur  marescallo;  ^  postca 
ei  remittitur  prisona,  ^-  prccdictus  Jacobus  quoad  appellum  ipsius  Isabellas  eat  inper- 
petuum  quietus,  Sfc.  He  was  then  arraigned  at  the  king's  suit  de  raptu  prtedicto,  and  was 
tried,  and  convicted;  but  the  king  afterwards  remisit  presdicto  Jacobo  judicium  vita  Sf 
membrorum;  6^  quod  faciat  redemptionem  pro  delicto  prcadicto,  S^  Jinem  fecit  cum  domino 
rege  per  centum  libras. 

in  an  indictment  for  an  assault  with  intent  to  ravish,  if  the  evidence  amounts  to  proof  of 
an  actual  rape.  Rex  v.  Harmwood,  1  Russ.  C.  S^  M.  560,  564;  1  East,  P.  C.  411.  Under 
an  indictment  for  an  assault  with  intent  to  commit  a  rape,  the  defendant  may  impeach 
the  prosecutrix's  character  for  chastity,  by  general  but  not  particular  evidence.  Rex  v. 
Clarke,  2  Stark,  241.  But  the  character  of  tiie  prosecutrix  as  to  general  chastity,  may  be 
impeached  by  general  evidence.  lb.  The  fact  of  her  making  complaint  of  tiie  outrage, 
and  the  state  in  which  she  was  at  the  time  of  making  tiie  complaint,  are  evidence.  lb. 

On  an  indictment  for  an  assault  with  an  intent  to  commit  a  rape,  evidence  that  the 
prisoner,  on  a  prior  occasion,  had  taken  liberties  with  the  prosecutrix,  is  not  receivable  to 
show  the  prisoner's  intent.  Rex  v.  Lloyd,  7  Car.  Sf  P.  318.  In  order  to  convict  on  a  charge 
of  assault,  with  intent  to  commit  a  rajie,  the  jury  must  be  satisfied,  not  only  that  the  pri- 
soner intended  to  gratify  his  passions  on  the  person  of  the  prosecutrix,  but  that  he 
intended  to  do  so  at  all  events,  and  notwithstanding  any  resistance  on  her  part.  Ih, 

In  an  indictment  for  a  rape,  the  deposition  of  a  girl  taken  before  the  committing  ma- 
gistrate and  signed  by  him,. may,  after  her  death,  be  read  in  evidence  at  the  trial  of-the 
prisoner,  althougii  it  was  not  signed  by  her,  and  she  was  under  twelve  years  of  age,  pro- 
vided she  was  sworn,  and  appeared  competent  to  take  an  oath,  and  all  the  facts  necessary 
to  complete  the  crime  may  be  collected  from  her  testimony  so  given  in  evidence.  Rex  v. 
Flemming,  2  Leach,  C.  C.  854  ;  1  East,  P.  0.  440. 


HISTORIA  PLACITORUM  CORONA.  634 

It  seems  to  me,  that  if  it  appear  to  the  court,  that  she  hafh  that, 
sense  and  understanding  that  she  knows  and  considers  the  ohMgatioii 
of  an  oath,  tho  she' be  under  twelve  years,  she  may  be  sworn;  thus 
we  find  it  done  in  case  of  evidences  against  witches,  an  infant  of  nine 
years  old  was  sworn.     Dalt.  cap.  111. 77.  291. {k) 

But  if  it  be  an  infant  of  such  tender  years,  that  in  point  of  discre- 
tion the  court  sees  it  unfit  to  swear  her,  yet  I  think  she  ought  to  be 
heard  without  oath  to  give  the  court  information,  tho  singly  of  itself 
it  ought  not  to  move  the  jury  to  convict  the  offender,  nor  is  it  in  itself 
a  sufficient  testimony,  because  not  upon  oath,  without  concurrence 
of  other  proofs,  that  may  render  the  tiling  probable;  and  my  reasons 
are,  1,  The  nature  of  the  oflense,  which  is  most  times  secret,  and  no 
other  testimony  can  be  had  of  the  very  doing  of  the  fact,  but  the 
party  upon  whom  it  is  committed,  tho  there  may  be  other  concur^ 
rent  proofs  of  the  fact  when  it  is  done.  2.  Because  if  the  child  com- 
plains presently  of  the  wrong  done  to  her  to  the  mother  or  other 
relations,  their  evidence  upon  oath  shall  be  taken,  yet  it  is  but  a  nar- 
rative of  what  the  child  told  them  without  oath,  and  there 
is  much  more  reason  for  the  court  to  hear  the  relation  of  the  [  635  ] 
child  herseh^,  than  to  receive  it  at  second-hand  from  those 
that  swear  they  heard  her  say  so;  for  such  a  relation  may  be  falsi- 
fied, or  otherwise  represented  at  the  second-hand,  than  when  it  was 
first  delivered. 

But  in  both  these  cases,  whether  the  infant  be  sworn  or  not,  it  is 
necessary  to  render  their  evidence  credible,  that  there  should  be  con- 
current evidence  to  make  out  the  fact,  and  not  to  groiuid  a  con- 
viction singly  upon  such  an  accusation  with  or  without  oath  of  an 
infant. 

For  in  many  cases  there  may  be  reason  to  admit  such  witnesses  to 
be  heard,  in  cases  especially  of  this  nature,  which  yet  the  jury  is  not 
bound  to  believe;  for  the  excellency  of  the  trial  by  jury  is  in  that 
they  are  the  triers  of  the  credit  of  the  witnesses  as  well  as  the 
truth  of  the  fact;  it  is  one  thing,  whether  a  witness  be  admissible 
to  be  heard,  another  thing,  whether  they  are  to  be  believed  when 
heard. 

It  is  true  rape  is  a  most  detestable  crime,  and  therefore  ought  se- 
verely and  impartially  to  be  punished  with  death;  but  it  nnist  be 
remembered,  that  it  is  an  accusation  easily  to  be  made  and  hard  to 
be  proved,  and  harder  to  be  defended  by  the  party  accused,  tho  never 
so  innocent. 

I  shall  never  forget  a  trial  before  myself  of  a  rape  in  the  county  of 
Sussex. 

There  had  been  one  of  that  county  convicted  and  executed  for  a 
rape  in  that  county  before  some  other  judges  about  three  assizes 
before,  and  I  suppose  very  justly:  some  malicious  people  seeing 
how  easy  it  was  to  make  out  such  an  accusation,  and  how  difficult  it 
was  for  the  party  accused  to  clear  himself,  furnished  the  two  assizes 

(k)  New  Edit.  p.  oil.      - 


635  HISTORIA  PLACITORUM  CORONA. 

following  with  many  indictments  of  rapes,  wherein  the  parties  ac- 
cused with  some  ditficulty  escaped. 

At  the  second  assizes  following  there  was  an  antient  wealthy  man 
of  about  sixty-three  years  old  indicted  for  a  rape,  which  was  fully 
sworn  against  him  by  a  young  girl  of  fourteen  years  old,  and  a  con- 
current testimony  of  her  mother  and  father,  and  some  other  rela- 
tions. The  antient  man,  when  he  came  to  his  defense, 
[  636  ]  alledged  that  it  was  true  the  fact  was  sworn,  and  it  was  not 
possible  for  him  to  produce  witnesses  to  the  negative;  but 
yet,  he  said,  his  very  age  carried  a  great  presumption  that  he  could 
not  be  guilty  of  that  crime;  but  yet  he  had  one  circumstance  more, 
that  he  believed  would  satisfy  the  court  and  the  jury,  that  he 
neither  was  nor  could  be  guilty;  and  being  demanded  what  that 
was,  he  said,  he  had  for  above  seven  years  last  past  been  afflicted 
with  a  rupture  so  hideous  and  great,  lliat  it  was  impossible  he  could 
carnally  know  any  woman,  neither  had  he  upon  that  account,  during 
all  that  time  carnally  known  iiis  own  wife,  and  ofiered  to  shew  the 
same  openly  in  court;  which  for  the  indecency  of  it  I  declined,  but 
appointed  tlie  jury  to  withdraw  into  some  room  to  inspect  this  un- 
usual evidence;  and  they  accordingly  did  so,  and  came  back  and 
gave  an  account  of  it  to  the  court,  that  it  was  impossible  he  should 
have  to  do  with  any  woman  in  that  kind,  much  less  to  commit  a 
rape,  for  all  his  bowels  seemed  to  be  fallen  down  in  those  parts,  that 
they  could  scarce  discern  his  privities,  the  rupture  being  full  as  big 
as  the  crown  of  a  hat,  whereupon  he  was  acquitted. 

Again,  at  Northampton  assizes,  before  one  of  my  brother  justices 
upon  the  Nisi  prins,  a  man  was  indicted  for  the  rape  of  two  young 
girls  not  above  fourten  years  old,  the  younger  somewhat  less,  and 
the  rapes  fully  proved,  tho'  peremptorily  denied  by  the  prisoner,  he 
was  tlierefore  to  the  satisfaction  of  the  judge  and  jury  convicted ; 
but  before  judgment  it  was  most  apparently  discovered,  that  it  was 
but  a  malicious  contrivance,  and  the  party  innocent;  he  was  there- 
fore reprieved  before  judgment. 

,  I  only  mention  these  instances,  that  we  may  be  the  more  cautious 
upon  trials  of  offenses  of  this  nature,  wherein  the  court  and  jury 
may  with  so  much  ease  be  imposed  upon  without  great  care  and 
vigilance;  the  heinousness  of  the  offense  many  times  transporting 
the  judge  and  jury  with  so  much  indignation,  that  they  are  over 
hastily  carried  to  the  conviction  of  the  person  accused  thereof,  by 
the  confident  testimony  sometimes  of  malicious  and  false  witnesses. 


HISTORIA  PLACITORUxM  CORONA.  637 


CHAPTER  LIX. 

CONCERNING    THE    FELONY    DE    UXORE    ABDUCTA    SIVE    RAPTA    CUM 
BONIS    VIRI,    SUPER    STATUTUM    WESTM.  2  CAP.  34. 

The  words  of  the  statute  are,  De  mulierihus  abductis  cum  bonis 
virorum  siioriim  habeat  rex  sectam  de  bonis  sic  asportatis. 

This  part  of  the  statute  hath  affinity  with  what  goes  before  in  the 
same  statute  concerning  rape;  and  tho  this  learning  hath  been  long 
antiquated,  yet  it  is  of  use  to  be  known. 

If  a  wife  goes  away  of  her  own  consent  with  another  man,  and 
takes  with  her  the  goods  of  the  husband,  this  seems  to  be  felony 
neither  in  the  man  nor  in  the  wife,  tho  Dalt.  cap.  108.  p.  266. («) 
takes  it  to  be  a  felony  in  the  man  that  takes  her  and  the  goods;  but 
it  is  a  tresf)ass,  for  which  at  common  law  the  husband  may  have  an 
action  of  trespass,  quare  iixoreni  suarn  cepit  <5*  abduxit  cunt  bonis 
viri. 

But  if  Ji.  take  the  wife  of  B.  against  her  will  with  the  goods  of 
her  husband,  but  doth  not  actually  ravish  the  wife,  it  is  felony  as  to 
the  goods,  for  which  the  party  may  be  indicted;  but  as  to  the 
taking  away  of  the  wife  it  is  but  a  trespass,  for  which  the  husband, 
may  have  his  action  of  trespass  at  common  law,  quare  uxorern 
suam  rapnit  <^'  earn  cum  bonis  S,'  catallis  ad  valenC ,  8fc.  abduxit 
4'  adhuc  detinet,  and  in  that  action  shall  recover  damages  for  the 
taking  of  his  wife  and  goods  at  common  law. 

But  it  should  seem,  that  he  mi^lit  have  his  actfon  grounded  upon 
the  statute  of  fVes/m.  2.  which  differs  only  in  this  from  a  trespass  at 
common  law,  1.  That  the  trespass  at  common  law  is  pone  per 
radios,  S)-e.  but  this  is  ai/achies,  14  H.  6.  2  b.  Again,  2.  The  writ 
at  common  law  is  general,  but  this  upon  the  statute  con- 
cludes contra  formam  statuti,  quod  vide  Fitz.  N.  B.  89.  f  638  "l 
9  H.  6.2  a.  . 

But  without  question,  if  the  wife  were  actually  ravished  and  the 
goods  taken,  this  action  lies  for  the  husband,  and  he  shall  recover 
damages  for  the  rape  as  well  as  the  goods,  tho  the  wife  were  dead 
or  divorced  after  the  rape.  44  ^Issiz.  13.  47  E.  3.  Jiclion  sur 
statute  37. 

.    And  it  seems  such  an   action  was  antiently  in  the  nature  of  an 
appeal  of  rape  and  robbery  grounded  upon  the  statute  of  Westm.  2. 

And  by  the  antrent  law  the  defendant  being  convicted  in  a  writ 
founded  upon  this  statute,  as  before,  was  to  have  judgment  of  death, 
which  appears  most  evidently  by  the  ordinance  of  parliament.  Rot. 
Fart.  8  E.  2  M.  3.  and  afterwards  sent  by  Mittimus  into  the  king's 
bench,  T.  II  E.  2.  Iiot.  4.  London,  which  recites,  that  in  such  case 

(a)  New  Edit.  p.  504. 


638  HISTORIA  PLACITORUM  CORON.^. 

the  defendant  was  not  bailable,  Eo  quod  idem  implacitatits^  si 
hiiJHsmndl  trans2;ressione  cnnvictiis  faisset,  siispensioni  udjndicari 
deheret,  and  therefore  provides,  that  the  defendant,  if  of  good  fame, 
shall  be  bailed. 

And  according  to  this  are  the  books  13  JJssiz.  5.  15  E.  3.  Ulfa- 
garie  49.  Coron.  122.  18  E,  3.  32.  a.  and  a  case  of  a  vicar  cited  to  be 
13  E.  2.  who  had  his  clergy  in  this  case,  but  it  should  seem  it  was 
intended,  1.  When  a  rape  was  actually  committed,  vide  44  Jlssiz.  13. 
and  2.  When  the  action  was  grounded  upon  the  statute,  and  not 
barely  at  common  law. 

But  the  law  hath  been  long  disused  to  give  a  capital  judgment 
upon  this  writ,  and  in  process  of  time  nothing,  as  it  seems,  was 
recovered  but  damages,  tho  the  writ  were  brought  npon  tiie  statute, 
for  rapuit  is  now  intended  of  a  simple  taking.  9  Eliz.  Bij.  256.  b. 
2  Co.  Instit.  435.  super  IVestm.  2  cap.  34.  4"3  E.  3.  23.  a. 

And  it  seems  the  law  was  accordingly  taken,  for  the  statute  of 
6  2i.  2.  cap.  6.  gives  an  appeal  to  the  husband  for  the  rape  of  his 
wife  in  some  cases,  which  it  needed  not  have  done,  if  by  the  law,  as 
it  was  then  used,  the  husband  might  upon  such  a  writ  convict  the 
party,  and  obtain  judgment  of  death  against  him. 

*  And  besides,  it   was  very  inconvenient,  that  in  a  civil 

[639]   action  formed  for  damages,  and  that  wants  the  material 
terms  of  law  to  express  a  felony,  (namely  carualife?'  cogno- 
vit and  felonicl)  judgment  of  death  should  be  given,  and  so  this 
course  expired  of  itself.(l) 

[1]  The  offence  of  abduction  may  Ije  divided  into  two  clauses— ;^rs^  the  forcible  taking 
away  of  a  woman  on  account  of  her  fortune,  with  intent  to  marry  her  or  defile  her;  and 
secondly,  the  unlawful  abduction  of  a  girl  under  the  age  of  sixteen  from  her  parents  or 
guardians. 

The  9  Geo.  IV.  c.  31.  s.  19.  enacts,  "That  where  any  woman  shall  have  any  interest, 
whether  legal  or  equitable,  present  or  future,  absolute,  conditional,  or  contingent,  in  any 
real  or  personal  estate,  or  shall  be  an  lieiress,  presumptive,  or  next  of  kin  to  any  one 
having  sucli  interest,  if  any  person  shall,  from  motives  of  lucre,  take  away  or  detain  such 
woman  against  her  will,  with  intent  to  marry  or  defile  her,  or  to  cause  her  to  be  married 
or  defiled  by  any  other  person  ;  every  such  offender,  and  every  person  counselling,  aiding 
or  abetting  such  ofiender,  shall  be  guilty  of  felony,  and  being  convicted  thereof,  shall  be 
liable  to  be  transported  beyond  the  seas  for  life,  or  for  any  term  not  less  than  seven  years, 
or  to  be  imprisoned,  with  or  without  hard  labour,  in  the  common  gaol  or  house  of  cor- 
rection, for  any  term  not  exceedmg  four  years."  And  the  act  repeals  the  3  Hen.  VII. 
c.  2;  o9  Eliz.  c.  9;  and  3  Edw.  I.  c.  13;  1  Geo.  IV.  c.  115;  as  also  so  much  of  6  Rich. 
St.  1.  c.  6.  as  relates  to  ravishers,  and  to  women  ravished. 

It  is  not  necessary,  as  was  the  case  under  the  prior  statutes,  that  an  actual  marriage 
or  dejilement  should  take  place.  Under  the  present  act,  the  taking  or  detaining,  for  the 
purpose  of  lucre,  coupled  with  an  intent  to  marry  or  defile,  constitutes  the  offence.  The 
taking  must  be  against  the  will  of  the  woman.  It  seems,  liovvever,  that  although  it  be 
with  the  will  of  the  woman,  yet  if  that  be  obtained  by //Y/urf  practised  upon  her,  the  case 
will  be  within  the  act.  Wakefield'' s  case,  Lancaster,  March  Assizes,  1827;  Dene.  C. 
Laic,  4.  It  is  no  excuse  that  the  woman  was  at  first  taken  away  with  her  own  consent, 
if  she  afterwards  refuse  to  continue  with  the  offender,  because  if  she  so  refuse  she  may 
irom  that  time  as  properly  be  said  to  be  taken  against  her  will,  as  if  she  had  never  given 
any  consent  at  all ;  for  till  the  force  was  put  upon  her,  she  was  in  her  own  power.  1  Hawk. 
c.  41.  s.  7;  1  Russ.  571.  Moreover,  the  detaining  against  her  will  is  an  offence.  It 
seems  also,  it  is  not  material  whether  a  woman  so  taken  contrary  to  her  will,  at  last  con- 
sent thereto  or  not,  if  she  were  under  the  force  at  the  time,  for  the  offence  is  complete  at 


HISTORIA  PLACITORUM  CORON.E.  639 

the  time  of  taking-.  Fullwood's  case,  Cro.  Car,  48^;  Sevcndon's  case,  5  St  Tr.  459; 
Hawk.  c.  41.  s.  8. 

It  will  be  observed  that  the  above  enactment  expressly  makes  accessaries  before  tlie 
fact  liable  as  principals,  which  was  a  doubtful  point  under  the  prior  statutes. 

The  indictment  must  set  forth  that  the  w-oman  taken  away  had  the  property,  or  that 
she  was  jieiress  presumptive,  &c.  as  required  by  the  act,  in  order  to  show  defendant's 
interested  motives.  Moulin  v.  Sir  G.  Dullison,  Vro.  Car.  484.  '1  he  place  and  manner 
of  taking  must  also  be  set  forth  in  the  proceedings.  Jd.  ibid.  It  must  also  be  alleored, 
that  the  taking  was  against  her  will,  and  that  it  was  for  lucre,  {Burton  v.  Morris,  Hob. 
182;   1  Hawk.  c.  41.  s.  5;), and  with  an  intent  to  marry  or  defile. 

To  sustain  the  indictment,  the  prosecutor  should  look  to  the  averments  in  it,  and  prove 
them  accordingly,  and  in  the  order  stated  in  such  indictment,  as  that  the  woman  was 
possessed  of  the  real  or  personal  estate,  or  was  the  heiress  presumi)tive,  or  nest  of  kin  to 
some  one  having  the  property  required  by  the  act.  It  should  be  proved  that  the  defend- 
ant, from  motives  of  lucre,  took  away  or  detained  the  person  mentioned  in  tlie  indict- 
ment, against  her  will,  and  the  jury  ought  not  to  convict  tlie  prisoner  unless  they  are 
satisfied  that  the  prisoner  committed  the  offence  from  motives  of  lucre;  but  evidence  of 
expressions  used  by  the  prisoner  respecting  the  property  of  the  lady,  such  as  his  stating 
that  he  had  seen  the  will  of  one  of  her  relatives,  (naming  him)  and  that  she  would  have 
£'220  a  year,  are  important  for  the  consideration  of  the  jury  in  coming  to  a  conclusion 
whether  the  prisoner  was  actuated  by  motives  of  lucre  or  not.  Reg.  v.  Barratt,  9  Car, 
4-  P.  387. 

A  prisoner  was  taken  into  custody  at  the  house  of  his  brother,  oh  a  charge  of  abduc- 
tion. When  he  was  taken,  a  letter  was  found  in  a  writing  desk,  in  the  room  where  he 
and  his  brother  were.  The  letter  was  directed  to  a  person  in  the  neighbourhood  of  the 
prisoner's  late  residence.  The  police  officer  was  going  to  open  it,  when  the  prisoner  told 
him  it  had  nothing  to  do  with  the  business  he  had  come  about;  held,  that  the  letter  was 
receivable  in  evidence  on  the  trial  of  the  prisoner  for  the  abduction.     lb. 

The  party  injured,  though  the  force  continued  till  the  time  of  the  marriage,  will  be  a 
good  witness  for  or  against  the  offender,  because  she  is  not  his  wife  de  jure,  and  may 
herself  swear  to  the  compulsion.  Seveudon's  case,  5  Harv.  i^t.  Tr.  456;  Brown's  case, 
1  Ventr.  243;  Fullwood's  case,  Cro.  Car.  488;  Rex  v.  Parry,  1  Hawk.  c.  41.  s.  13; 

1  Greenl.  Ev.  s.  343. 

But  some  writers  seem  to  think  that  where  the  actual  marriage  was  good  in  conse- 
quence of  a  subsequent  consent,  the  wife  cannot  be  sworn;  though  the  better  opinion 
seems  to  be  that  the  offender  should  not  be  allowed  to  take  advantage  of  liis  o\yn  wrong, 
and  that  the  act  of  marriage,  which  is  the  completion  of  his  offence,  should  not  be  con-. 
Ptrued  to  disqualify  the  witness  on  whose  testimony  he  may  be  convicted.  4  Bla.  Com. 
209;  1  East,  P.  C.  454;  Rex  v.  Wakefield,  supra. 

Punishment. — This  crime  is  a  felony,  and  punishable  Accordingly  with  transportation 
for  life,  or  for  not  less  than  seven  years,  or  with  imprisonment  with  or  without  hard  labour 
for  not  more  than  four  years.  9  Geo.  IV.  c.  31,  s.  19.  By  sect.  31  of  tlie  same  act  ac- 
cessaries after  the  fact  are  punishable  with  imprisonment  with  or  without  hard  labour 
not  exceeding  two  years. 

Abduction'of  Girls  under  sixteen. — The  9  Geo.  IV.  c.  31,  s.  20,  enacts,  "That  if  any 
person  shall  unlawfully  take,  or  cause  to  be  taken,  any  unmarried  girl  being  under  the 
age  of  sixteen  years  out  of  the  possession  and  against  the  will  of  her  father  or  mother, 
or  of  any  other  person  having  the  lawful  care  or  charge  of  her;  every  such  offender 
shall  be  guilty  of  a  misdemeanor,  and  being  convicted  thereof  shall  be  liable  to  suffer 
such  punishment  by  line  or  imprisonment,  or  by  both  as  the  court  Shall  award."  And 
the  act  repeals  4  &  5  f*.  4-  M.  c.  8. 

This  provision  was  passed  in  order  to  meet  those  cases  where  the  girl  is  of  so  tender 
an  age  that  she  might  be  easily  imposed  on,  and  her  consent  obtained.  It  alters  the  law 
as  it  stood  under  the  4  &.  5  P.  Sf  M.  c.  8. 

An   illegitimate   child   appears  to   be   within  the   act.     Rex  v.  Cornforth  and  others, 

2  Stra.  1162;  better  reported  in  Bolt,  by  Const.  Rex  v.  Sweeting,  1  East,  P.  C.  457; 
and  see  Moritz  v.  Garnhard,  7  Walts,  R.  3U3,  where  this  case  is  cited  and  approved  by 
Gibson,  Ch.  J.  The  mother  retains  her  authority  though  she  marry  again,  and  the 
assent  of  the  second  husband  is  not  material.     Ratcliffe's  case,  3  Rcp.33.^ 

But  the. statute  extends  only  to  the  custody  of  the  7nother  where  the  father  has  not 
disposed  of  the  custody  of  the  child  to  others.    Id. 


639  HISTORIA  PLACITORUM  CORONA. 

It  seems  that  if  tlie  takings  were  witli  tlie  consent  of  the  parent  or  person  having-  the 
charge  of  the  child,  no  rcstriciion  could  do  away  with  the  etTcct  of  such  approval. 
Calthorpe  v.  Arlell,  3  Mod.  169;  1  East.  P.  C.  457. 

Under  the  prior  act  it  was  holden,  that  if  a  parent  place  a  daughter  under  the  care  of 
another,  who  by  collusion  marries  her  to  liis  own  son,  the  case  was  not  within  the  act 
if  the  marriage  were  solemnized  in  a  parish  church,  at  a  canonical  hour,  and  without 
any  attempt  at  privacy.  3  Mod,  88.  The  principle  of  this  case  was  disputed  by  Mr. 
East,  who  contended  that  it  would  protect  a  schoolmistress  in  disposing  of  the  flsmale 
infants  under  her  care  in  marriage,  when  it  is  manliest  no  power  of  that  kind  is  ever 
deputed,  but  is  impliedly  reserved  by  the  parent.     1  East,  P.  C.  457. 

And  where  a  man  by  false  and  fraudulent  representations,  induced  the  parents  of  a 
girl  between  ten  and  eleven  years  of  age  to  allow  him  to  take  her  away,  such  taking 
away  has  been  considered  an  abduction  within  this  statute.  Reg.  v.  Hopkins,  1  Car. 
Sf  M  254. 

It  appears  to  be  an  offence  at  common  law  to  take  a  child  from  her  parents  or  guar- 
dians, or  others  entrusted  with  the  care  of  her,  by  any  sinister  means,  either  by  vio- 
lence, deceit,  conspiracy,  or  any  other  corrupt  or  improper  practice,  as  by  intoxication, 
for  the  purpose  of  marrying  her,  although  she  herself  might  have  consented  to  the  mar- 
riage.  1  East,  P.  C.  45!);  Rex  v.  Twisleton,  I  Lev.  257;  Rex  v.  Lord  Ossullon,  2  Stra, 
11U7;  Rex  v.  Lord  Grey,  3  St.  Tr.;  3  Chit.  C.  L.  713;  and  see  Mifflin  v.  Com.  5  H^.  ^ 
(S.  Rep.  461,  opinion  of  Gibson,  C.  J. 

No  particular  suggestions  as  to  the  framing  the  indictment  are  necessary.  The  usual 
allegation  of  the  girl  being  unmarried  is  sufficient.  Rex  v.  Moore,  2  Lev,  179;  Rex  v. 
Boyal,  2  Burr  R.  832, 

'I'lie  prosecutor  should  be  prepared  to  prove  that  the  defendant  took  away  the  girl  out 
of  the  custody  of  the  parent  or  temporary  guardian;  that  she  was  under  sixteen  years 
of  age  ;  that  the  taking  was  against  such  parent's  or  guardian's  consent,  and  for  which 
purpose  any  of  these  parties  may  be  called. 

This  offence  is  a  misdemeanor,  and  punishable  by  fine  or  imprisonment, or  by  both  as 
the  court  think  fit.  See  the  9  Geo,  IV.  c.  31,  s.  20.  See  1  Burns's  Just.  29  ed.  Load. 
1845,  tit.  "Abduction." 

It  appears  to  be  the  better  opinion,  that  if  a  man  marry  a  woman  under  age,  without 
the  consent  of  her  fatiier  or  guardian,  it  will  not  be  an  indictable  offence  at  common  law. 
1  East,  P.  C.c.  U.S.  9.  p.  458.  But  if  children  be  taken  from  their  parents  or  guardians, 
or  others  entrusted  with  the  care  of  them,  by  any  sinister  means,  either  by  violence,  deceit,' 
conspiracy,  or  any  corrupt  or  improper  practice,  as  by  intoxication,  for  the  purpose  of 
marrying  them,  it  appears  that  such  criminal  means  will  render  the  act  an  offence  at 
common  law,  though  the  parties  themselves  may  be  consenting  to  the  marriage.  3  Chit- 
ty''s  Cr.  Law,  713. 

And  seduction  may  be  attended  with  such  circumstances  of  combination  and  conspi- 
racy as  to  make  it  an  indictable  offence.  A  case  is  reported,  where  Lord  Grey  and  otiiers 
were  charged,  by  an  information  at  common  law,  with  conspiracy  and  intending  the 
ruin  of  the  Lady  Henrietta  Berkeley,  then  a  virgin  unmarried,  within  the  age  of  eighteen 
years,  one  of  tiie  daughters  of  tlie  Earl  of  Berkeley,  (she  being  under  the  custody,  &c.  of 
her  father,)  soliciting  her  to  desert  her  father  and  commit  wlioredom  and  adultery  with 
Lord  Grci/,  who  was  the  husband  of  another  daughter  of  the  Earl  of  Berkeley,  sister  of 
the  Lady  Henrietta,  and  to  live  and  cohabit  with  him:  and  further,  the  defendants  were 
charged,  that  in  prosecution  of  such  conspiracy,  they  took  away  the  lady  Henrietta,  at 
night,  from  her  father's  house  and  custody,  and  against  his  will,  and  caused  her  to  live 
and  cohabit  in  divers  secret  places  with  Lord  Grey,  to  the  ruin  of  the  lady,  and  to  the 
evil  example,  ifcc.  The  defendants  were  Ibund  guilty,  though  there  was  no  proof  of  any 
force;  but,  on  the  contrary,  it  appeared  that  the  lady,  who  was  herself  examined  as  a 
witness,  was  desirous  of  leaving  her  father's  house,  and  concurred  in  all  the  measures 
taken  for  her  departure,  and  subsequent  concealment.  It  was  not  shown  that  any  artifice 
was  used  to  prevail  on  her  to  leave  her  fither's  house,  but  the  case  was  put  upon  the 
ground  that  there  was  a  solicitation  and  enticement  of  her  to  unlawful  lust,  by  Lord 
Grey,  who  was  the  principal  person  concerned,  the  others  being  his  servants,  or  persons 
acting  by  liis  command,  and  under  his  control.  Rex  v.  Lord  Grey  and  others,  3  St.  Tr. 
519.  1  East,  P.  C.  c.  11.  s.  IQ.  p  460. 

The  forcible  abduction  of  a  woman  from  motives  of  lucre,  is  an  offence  of  the  degree 
of  felony,  I  y  the  9  Geo.  IV.  c.  31,  which  repeals  several  former  statutes  upon  this  subject. 
See  this  note  supra. 


HISTORIA  PLACITORUM  CORONA.  639 

Upon  an  indictment  for  abduction,  on  the  9  Geo.  IV.  c.  31.  s.  19,  it  must  be  proved 
that  the  prisoner  took  away  the  woman  from  motives  of  lucre,  but  his  expressions  rela. 
tive  to  her  property  are  evidence  that  he  was  actuated  by  such  motives.  Upon  an  in- 
dictment for  having  feloniously,  and  from  motives  of  lucre  taken  away  and  detained 
M.  E.  ag^ainst  her  will,  she  having  a  future  interest  in  certain  personal  property,  con- 
taining  a  count  with  intent  to  marry,  and  a  count  with  intent  to  defile,  it  appeared  that 
the  prisoner  had  taught  M.  E.  riiusic,  and  had  paid  his  addresses  to  her,  which  w^re 
favourably  received  by  her,  but  which  her  relatives  insisted  upon  her  breaking  off,  and 
by  their  advice  she  wrote  to  the  prisoner  to  tell  him  tliat  tlie  intimacy  must  cease  for- 
ever.  One  day  when  she  was  walking  out,  the  prisoner  came  in  a  gig,  got  out,  came 
behind  her,  and  having  placed  his  hand  on  her  shoulder,  carried  her  in  his  arms  to  the 
gig,  she  struggling  and  screaming  all  the  time  he  was  doing  so.  He  then  drove  away 
with  her,  but  was  pursued  and  overtaken  at  a  distance.  She  was  cross-examined  with 
a  view  to  show  that  she  had  consented  to  the  abduction.  M.  E.  would,  on  her  attainiiif 
the  age  of  twenty-one,  be  entitled  to  the  sum  of  £2100,  and  the  prisoner  had  said  that  he 
knew  that  she  would  be  entitled  to  £200  a  year.  It  was  contended  that  if  the  prisoner 
carried  her  off  even  against  her  own  consent,  to  make  her  his  wife  from  affection  to  her 
person,  and  not  as  the  means  of  getting  at  her  property,  the  offence  was  not  proved.  In 
Hex  V.  Wakffield^  cited  supra,  the  parties  had  no  previous  intimac}',  and  therefore  all 
inducement  to  the  act  arising  from  real  passion  and  affection,  was  out  of  the  question, 
and  the  abduction  in  that  instance,  as  well  as  almost  every  other  which  had  been  the 
subject  of  penal  inquiry,  could  be  accounted  for  on  no  other  grounds  than  those  of  cold 
and  sordid  calculation  to  get  possession  of  a  lady's  property  by  first  obtaining  possession 
of  her  person.  Fiirke,  B.  "  I  agree  with  the  learned  counsel  tor  the  prisoner,  that  there 
is  a  great  distinction  between  this  case  and  the  case  of  Kex  v.  Wakefield,  as  there  was 
not  in  that  case'  any  previous  intimacy  between  the  parties.  I  also  agree  with  him  as 
to  his  argument  that  if  all  the  other  requisites  of  the  statute  constituting  the  offence  are 
satisfied,  and  the  evidence  of  the  motive  being  the  base  and  sordid  one  of  lucre,  is  unsatis- 
factory or  insufficient,  it  will  be  your  duty  to  acquit  the  prisoner  of  the  charge  of  felony. 
It  is  clearly  made  out  that  Miss  Ellis  is  entitled  to  personal  property,  and  that  tli'e 
prisoner  took  her  away  with  the  inlention  of  marrying  her;  and  I  think  that  the  other 
count  may  be  entirely  laid  out  of  your  consideration,  as  there  is  no  evidence  of  it  what- 
ever. You  will  therefore  say,  whether  the  prosecutrix,  being  a  lady  entitled  to  property, 
the  prisoner  either  took  her  away  or  detained  her  against  her  will  with  intent  of  marrying 
her  but  for  the  base  purpose  of  getting  possession  of  her  property;  and  if  you  come  to  the 
conclusion  that  that  was  so,  it  will  be  your  duly  to  find  him  guilty  of  the  felony.  With 
respect  to  the  motives  of  the  prisoner,  evidence  has  been  given  of  expressions  used  by  the 
prisoner  respecting  the  property  of  Miss  Ellis,  such  as  having  told  one  of  the  witnesses 
that  he  had  seen  Mr.  WhitweWs  will,  and  that  she  would  be  entitled  to  .£200  a  year. 
These  expressions  are  important  for  you  to  consider,  in  order  to  your  forming  a  judg. 
ment  whether  the  prisoner  was  actuated  by  motives  of  lucre  or  not.  Unless  you  are 
.■satisfied  that  such  a  motive  prompted  him  to  take  away  the  prosecutrix  against  her  will, 
-he  is  entitled  to  be  acquitted  of  the  felony,  and  you  will  then  consider  whether  he  used 
any  force  to  her  person  in  taking  her  away,  and  took  her  away  against  her  consent;  for 
Jf  he  did,  and  he  is  not  guilty  of  the  felony,  you  may  under  the  present  indictment  con- 
vict  him  of  the  assault."    Reg-  v.  Bnrratt,  9.  C.  Sf  P.  387,  cited  supra. 

This  case  also  sliows  that  if  the  prisoner  be  acquitted  of  the  felony,  he  may  be  con- 
victed  of  anassault  under  the  1  Vict.  c.  85.  s.  11,  if  he  used  force  to  the  person  of  the 
female  in  taking. her  away.  I  Russ  on  Crimes,  701,  702.  See  also  the  remarkable  case 
•of  Rex  V.  Gordon,  coram  Lnwrence  J.  Oxford  Lent  Ass,  1804,  fully  reported  in  1  Russ. 
on  Crimes,  704.  2d  Land,  ed. 


VOL.  I. — 55 


639  HISTORIA  PLACITORUM  CORONA. 

CHAPTER  LX. 

OF    FELONY    BY    PURVEYORS    TAKING    VICTUALS    WITHOUT    WARRANT. 

By  the  statute  of  Articuli  super  Cartas,  cap.  2.  It  is  enacted,  Si 
nul  face  prises  sans  garrant,  &  les  emport  encountre  volimt  de  celui, 
a  qe  les  biens  sont,  soit  maintenant  arrest  per  le  vill,  on  le  prise  serra 
fait,  &  amesne  al  prochein  gaol :  Et  si  de  ceo  soit  attaint,  soit  fait  de 
lui,  come  de  laron,  si  la  quantite  de  biens  le  demand. 

If  t^.  having  no  commission  take  goods  by  pretense  of  a  commis- 
sion as  purveyor,  and  the  party  not  knowing  that  he  hath  no  com- 
mission sell  and  suffer  him  to  take  it,  yet  this  is  felony;  but  if  the 
owner  knew  he  had  no  commission,  and  yet  willingly  sell  it  to  him 
as  a  purveyor,  and  he  take  and  carry  it  away,  this  is  not  a  carrying 
away  against  the  consent  of  the  owner  to  make  a  felony  within  this 
statute.  2  Co.  Instil,  p.  546.  super  Jirticulls,  cap.  2. 

This  point  of  felony  is  confirmed  by  the  statute  of  18  E.  3.  cap.  7. 
and  4  E.  3.  cap.  4- 

Afterwards  by  the  statute  of  5  E.  3.  cap.  2.  and  25  E.  3.  cap.  1. 
"  If  a  purveyor  shall  take  goods  above  the  value  of  twelve-pence 
without  testimony  and  appraisement  of  the  constable,  or  without  tal- 
lies given,  this  is  also  felony." 

Again,  by  the  statute  of  25  E.  3.  cap.  15.  "If  a  purveyor 
[640]   take  sheep  and  their  wool  betwixt  Easter  and  Midsummer, 
it  is  felony,  if  he  shore  them  at  his  own  house." 

Again,  by  the  statute  of  36  E.  3.  cap.  2.  "  If  any  purveyor  ta'ke 
goods  or  carriage,  otherwise  than  is  contained  in  their  commission, 
it  is  felony." 

But  in  all  these  felonies  the  offender  is  not  ousted  of  clergy,  but  he 
shall  have  it :  vide  Co.  P.  C.  cap.  24. 

But  these  acts  of  parliament  and  the  punishment  of  purveyors  is 
now  out  of  date,  because  by  the  statute  of  12  Car.  2.  cap.  24.  all 
purveyance  is  taken  away. 

Only  by  two  subsequent  acts,  namely  13  Car.  2.  cap.  8.  and  14 
Car.  2.  cap.  20.  there  is  a  special  purveyance  of  carriage  settled  for 
the  king's  household,  and  for  the  navy  and  carriage  of  ordnance; 
but  the  statute  of  Articiili  super  cartas,  and  the  other  statutes 
making  felony  in  case  of  undue  purveyance  do  not  concern  this 
new  established  purveyance,  because  settled  in  another  way;  and 
therefore  I  shall  say  no  more  touching  this  matter. 


HISTORIA  PLACITORUM  CORONA.  640 


CHAPTER  LXI. 

CONCERNING    THE    NEW    FELONIES    ENACTED    IN    THE    TIMES    OF  E.  2. 

E.   3.  AND    R.  2. 

In  the  times  of  those  kings  there  were  but  few  new  felonies 
enacted  other  than  those  touching  purveyors,  whereof  in  the  former 
chapter. 

By  the  statute  of  1  E.  2.  De  frangentibus  prisonam^  the  law 
was  settled  in  that  point,  whereof  I  liave  said  sufficient  supra, 
cap.  54. 

By  the  statute  of  14  E.  3.  cap.  10.  "If  a  gaoler  or  under  keeper 
by  too  great  duress  of  imprisonment,  and  by  pain  make 
any  prisoner  in  his  ward  to  become  an  appellor  against  his   ('641'] 
will,  and  thereof  be  attaint,  he  shall  have  judgment  of  life 
and  member," 

These  words  in  any  act  of  parliament  Eii  judgment  de  vy  Sf 
Tnember  create  a  felony. 

This  act  extends  to  a  gaoler  de  facto,  tho  he  be  not  a  gaoler 
de  jure.  ^ 

The  offender  hath  the  benefit  of  clergy:  vide  Co.  P.  C.  cap.  29. 
p.9\.  touching  this  felony. 

By  an  act  Hot.  Par.  17  E.  3.  n.  15.  but  not  printed,  the  importa- 
tion of  false  and  evil  money  is  prohibited  under  pain  of  life  and 
member,  and  the  exportation  of  coin  or  bullion  prohibited  under 
pain  of  forfeiture,  and  if  the  searcher  be  of  confederacy  with  the  ex- 
porter, it  is  enacted  to  be  felony  in  the  searcher. 

If  it  be  said  this  act  was  needless  to  make  importation  of  false 
money  felony,  because  declared  treason  by  the  statute  of  25  E.  3. 
the  answer  is  obvious.  By  the  act  of  Vl  E.  3.  before-mentioned 
licence  was  granted  to  Dutch  merchants  and  others  to  import  their 
own  coin  so  it  were  as  good  as  sterling,  and  that,  if  they  pleased, 
the  merchants  might  trade  between  themselves  with  that  foreign 
money;  and  it  was  necessary  in  respect  of  that  foreign  money  to 
impose  a  new  penalty  upon  the  importers  of  false  money  of  that 
kind,  because  that  foreign  coin  was  not  within  the  statute  of 
25  E.  3. 

But  this  seems  to  be  but  a  temporary  law  during  that  special 
intercourse  between  the  Efiglish  and  Dutch,  and  besides  by  sub- 
sequent statutes  the  penalty  of  treason  is  annexed  to  the  importation 
of  counterfeit  coin  made  current  by  proclamation :  guod  vide  supra, 
cap.  20.  p.  225. 

By  the  statute  of  27  E.  3.  cap.  3.  of  the  staple,  the  exportation  of 
wools,  wool-fells,  leather  or. lead  by  any  English,  Irish,  or  Welch- 
man,  is  prohibited  under  pain  of  loss  of  life  and  member,  and  for- 


641  HISTORIA  PLACITORUM  CORONA. 

feiture  of  lands  and  goods, («)  but  this  was  repealed  by  the  statute 
of  36  E.  3.  cap.  11.  whereby  it  was  enacted,  that  merchants  deni- 
zens may  pass  with  their  wool  as  well  as  foreigners  without  being 
restrained. 

But  yet  this  was  not  full  enough,  and  therefore  by  the 
r  642]  statute  of  38  E.  3.  cap.  6.  there  was  a  fuller  repeal  of  the 
statute  of  27  E.  3.  as  to  the  point  of  felony,  yet  the  for- 
feiture of  lands  and  goods  continued  upon  merchants  denizens,  and 
the  statute  of  the  staple  was  confirmed  in  all  points  by  38  E.  3. 
cap.  7. 

But  by  the  statute  of  43  E.  3.  cap.  1.  the  staple  of  Calais  was 
abolished,  yet  by  14  R.  2.  cap.  5.  exportation  of  wool,  wool-fells, 
leather  and  lead  are  prohibited  to  denizens  under  pain  of  forfeiture 
of  them. 

By  the  statute  o(  21 E.  3.  de  provisorihiis,  cap.  5,ingrossingof  Gas- 
coign  wines  made  felony,  but  that  penalty  repealed  by  the  statute 
37"^.  3.  cap.  16. 

So  that  these  statutes  stand  now  repealed. 

But  yet  by  the  statute  of  18  ^.  6.  ccrj).  15.  the  carrying  of  wool 
or  wool-fells  out  of  the  realm  to  other  places  than  to  the  staple  of 
Calais  without  the  king's  licence  is  felony,  excepts  wools  carried  to 
the  streights  of  Morocco. 

This  statute  is  supposed  by  my  lord  Coke,  P.  C.  cap.  32  to  be  in 
force,  but  that  being  doubted,  because  the  staple  of  Calais  then  in 
use  hath  been  long  since  abolished,  a  new  provision  and  a  better  is 
made  by  acts  of  this  present  parliament.(A) 

But  whether  that  act  be  in  force  or  not,  the  offender  was  not  there- 
by excluded  of  the  benefit  of  clergy. 

By  the  statute  of  34  E.  3.  cap.  22.  the  concealing  and  taking  away 
of  an  hawk  was  two  years  imprisonment;  but  by  the  statute  of  37  E. 
3  cap.  19.  the  stealing  of  a  faulcon,tercelet,  lanner,  or  laneret  is  made 
felony. 

See  the  commentary  Co.  P.  C.  cap.  34.  where  it  is  declared,  that 
this  act  extends  only  to  faulcons,  and  those  of  that  kind. 

The  proof  intended  by  this  act  is  not  by  jury  but  by  circumstances, 
as  varvels,  S,'c. 

The  offender  is  within  benefit  of  clergy. 

As  to  the  laws  in  the  time  of  Richard  II. 

6  A'.  2.  cap.  6.  concerning  the  punishment  of  rape,  de  quo  satis, 
cap.  58. 

7  R.  2.  cap.  8.  of  purveyors,  de  quo  supra,  cap.  60. 

By  the  statute  of  13  ^.  2.  cap.  3.  <'  If  any  man  bring 
r643  3  or  send  into  this  realm  or  the  king's  power  any  summons, 
sentence  of  excommunication  against  any  person  for  the 
cause  of  making  motion,  assent  or  execution  of  the  statute  of  provisors, 
he  shall  be  taken,  arrested,  and  put  in  prison,  and  forfeit  all  his  lands, 
tenenients,  goods  and  chattels  for  ever,  and  incur  the  pain  of  life  and 

(a)  Co.  P.  C.  p.  95.  (h)  12  Car.  2.  cap.  32.  13  ^  14  Car.  2.  cap.  18. 


HISTORIA  PLACITORUM  CORONiE.  643 

member;  and  if  any  prelate  make  execution  of  such  summons,  sen- 
tence or  excommunication,  his  temporalties  shall  be  taken  and  abide 
in  the  king's  hands  till  due  redress  made. 

"  And  if  any  person  of  less  estate  than  a  prelate  makes  such  exe- 
cution, he  shall  be  taken  and  arrested  and  imprisoned,  and  make  fine 
and  ransom  by  the  discretion  of  the  king's  council." 

The  bringing  in  of  bulls  of  this  nature  is  against  the  common  law, 
and  sometimes  antiently  punished  as  high  treason,  vide  Co.  P.  C. 
cop.  36.  8)'  libros  ibi. 

But  now  by  the  statute  13  Eliz.  cap.  2.  the  offense  as  well  in  the 
bringers  in,  as  executors  of  these  bulls,  4*c.  is  made  high  treason,  as 
well  in  persons  ecclesiastical  as  temporal. 

There  is  nothing  else  in  these  kings  reigns  that  enacts  a  new  felony, 
only  some  statutes  directing  the  process  and  jurisdiction,  whereby 
felonies  may  be  tried,  as  13  .ff.  2.  cap.  2.  of  the  constable  and  mar- 
shal, &'C. 


CHAPTER  LXII.  [644] 

CONCERNING    THE    NEW    FELONIES    ENACTED    IN   THE   TIMES    OF    H.   4. 

H.  5.  H.  6.  E.  4. 

By  the  statute  of  5.  H.  4.  cap.  4.  it  is  ordained,  "That  none  from 

thenceforth  shall  use  to  multiply  gold  or  silver,  nor  use  the  craft  of 

multiplication,  and  if  any  do,  he  shall  incur  the  pain  of  felony  in  this 

case."(a) 

.     And  the  reason  of  this  act  was  not  because  they  thought  the  real 

transmutation  of  metals  into  gold  or  silver  was  feasible,  but  the  reason 

is  given  in  the  petition  of  the  commons.  lioL  Car.  5.  H.  4.  n.  63. 

Car  plusers  homes  par  colmir  de  cest  multiplication  font  faux 
rtiony  a  ^rand  deceit  du  roy  4'  damage  de  son  people:  vide  tamen 
Co.  P.  C.  cap.  20.  dispensations  granted  to  particular  persons  by  34 
S,'  35  H.  6.  for  the  using  of  this  art  with  a  tion  obstante  oiihe  statute 
of  5  H.  4. 

The  offender  is  to  have  his  clergy. 

And  altho  the  statute  mentions  not  accessaries  before  or  after,  yet 
this  statute  making  the  fact  felony  doth  consequentially  subject  acces- 
saries before  and  after  to  the  penalty,  tho  this  be  made  a  qusere.  Dy. 
88.  in  Eden^s  case;  yet  it  seems  now  settled  according  to  the  opinion 

(a)  The  offense  prohibited  by  this  act  was  not  the  extracting  g'old  or  silver  out  of  lead 
or  other  metals,  which  is  now  known  by  the  name  of  refining-,  for  that  is  not  the  muili- 
plication  of  gold  or  silver,  but  only  a  separation  thereof  from  the  coarser  metal,  but  the. 
design  of  the  act  was  to  prohibit  the  transmutation  of  one  metal  into  another,  which  was 
pretended  to  be  done  by  the  pliilosopher's  stone  or  elixir,  whereby  great  numbers  were 
bubbled  and  cheated;  but  however,  because  some  persons  were  (groundlessly)  afraid  to 
exercise  the  art  of  smelting  and  refining  metals,  lest  they  should  fall  under  the  penalty 
of  this  statute,  it  was  therefore  repealed  by  1  W.  Sf  M.  cap.  30.  provided  that  the  gold  or 
silver  extracted  by  the  said  art  be  carried  to  the  Tower  of  London  for  the  making  of 
monies,  and  be  not  otherwise  disposed  of. 


644  HISTORIA  PLACITORUM  CORONiE. 

of  my  lord  Coke,  P.  C.  cap.  20.  that  there  may  be  accessaries  to  this 
new  felony  before  and  offer. 

By  the  statute  of  5  H.  4.  cap.  5.  cutting  the  tongues  or 
r  645  ]  putting  out  the  eyes  of  the  king's  subjects  of  malice  pre- 
pensed is  enacted  to  be  felony. 

This  was  extended  to  other  dismembring,  as  cutting  off  ears,  by  37 
H.  8.  cap.  6.  but  by  an  act  of  this  present  parHament(6)  this  and 
some  other  dismembrings  are  made  felonies  out  of  the  benefit  of  the 
clergy. 

By  the  statute  of  3  H.  5.  cap.  1.  "If  any  person  do  make,  buy, 
coin,  or  bring  into  the  kingdom  Galli-ha/f-pence,  Suskins  or  Dod- 
kins,  to  sell,  or  put  them  in  payment  in  this  realm,  it  is  felony." 

And  by  the  statute  of  2  H.  6.  cap.  9.  If  any  man  pay  or  receive 
the  money  called  Blanks,  it  is  also  felony;  but  both  these  are  with- 
in clergy,  and  by  the  whole  disuser  of  these  coins  these  statutes  are 
of  little  use. 

By  the  statute  of  3  H.  5.  cap.  3.  it  is  enacted,  "That  proclamation 
shall  issue,  that  all  Britons  depart  out  of  the  realm  before  the  feast 
of  St.  John  Baptist  next,  upon  pain  of  loss  of  life  and  member." 

But  this  was  but  a  temporary  law  and  expired. 

By  the  statute  of  3  H.  6.  cap.  1.  it  is  enacted,  "  That  no  congrega- 
tions or  confederacies  be  made  by  masons  in  their  assemblies,  where- 
by the  good  order  of  the  statute  of  Labourers  is  violated  ;  and  they 
that  cause  such  assembhes  to  be  holden,  shall  be  adjudged  felons." 

But  the  statute  of  Labourers  being  repeald  by  the  statute  of 
5  Eliz.  cap.  4.  this  law  is  consequentially  repeald.  Co.  P.  C.  cap.  35. 
j».  99. 

By  the  statute  of  S  //.  6.  cap.  12.  it  is  enacted,  "  That  if  any  record 
or  parcel  of  the  same,  writ,  return,  panel,  process,  or  warrant  of 
attorney  in  the  king's  courts  of  chancery,  exchequer,  the  one  bench 
or  the  other,  or  in  the  treasury,  be  wilUngly  stolen,  taken  away,  with- 
drawn, or  avoided  by  any  clerk,  or  by  any  other  person, 
r  646  ]  by  cause  whereof  the  judgment  shall  be  reversed;  that  such 
stealer,  taker  away,  withdrawer,  or  avoider,  their  procura- 
tors, counsellors,  and  abetters  thereof  indicted,  and  by  process  there- 
upon made,  duly  convict  upon  their  own  confession,  or  inquest  there- 
upon taken  of  lawful  men,  half  whereof  shall  be  Of  men  of  any  court 
of  the  same  courts,  and  the  other  half  of  others,  shall  be  judged  for 
felons;  and  that  the  judges  of  the  same  courts,  or  of  the  one  bench 
or  the  other,  have  power  to  hear  and  determine  such  defaults  before 
them,  and  thereof  to  make  due  punishment,  as  is  aforesaid." 

In  the  consideration  of  this  statute,  it  will  be  convenient  to  exa- 
mine, 1.  How  the  law  stood  in  reference  to  the  matters  abovesaid 

(b)  22  Sf  23  Car.  2.  whereby  the  cutting  out  or  disablinor  the  tongue,  putting  out  an 
eye,  slitting  the  nose,  cutting  off  a  nose  or  lip,  cutting  olTor  disabling  any  limb  or  mem- 
ber, if  done  with  an  intention  to  maim  or  disfigure,  is  felony  without  benefit  of  clergy; 
upon  this  statute  Coke  and  Woodburne  were  convicted  and  executed  for  slitting  the  nose 
of  Mr.  Crispe,  8  Geo.  I.    See  State  Tr.  Vol.  VI.  p.  212. 


HISTORIA  PLACITORUM  CORONA.  646 

before  this  act  made.     2.  What  is  the  import  of  the  several  parts  of 
this  act. 

At  the  common  law,  the  undue  rasure,  or  embezzling  of  a  record, 
was  a  great  offense,  for  which  even  a  judge  himself  was  punishable 
by  fine  and  imprisonment,  2  U.S.  10.  //en^/^ww  a  judge  was  fined 
eight  hundred  marks  for  rasing  the  record  of  a  fine  of  thirteen  shil- 
lings and  four  pence  imposed  upon  a  poor  man,  and  reducing  it  to 
six  shillings  and  eight  pence.(c) 

By  the  statute  of  Westm.  1.  viz.  3  E.  I.  cap.  29,  it  is  enacted, 
"That  if  any  Serjeant,  pleader  or  other,  do  any  manner  of  deceit  or 
collusion  to  the  king's  court,  or  consent  to  it  in  the  deceit  of  the  court, 
or  to  beguile  the  court  or  the  party,  and  be  thereof  attaint,  he  shall 
be  imprisoned  for  a  year  and  a  day,  and  from  thenceforth  shall  not 
be  heard  to  plead  in  that  court." 

And  if  he  be  no  pleader,  he  shall  be  imprisoned  in  like  manner, 
and  if  the  trespass  requires  greater  punishment,  it  shall  be  at  the 
king's  pleasure. (fl') 

Upon  this  act  it  was  that  Robert  de  Greshope  a  common 
attorney  was  imprisond  for  a  year  and  a  day,  and  banished  [  647  ] 
the  court  of  common   pleas,  for   embezzling  a  part  of  a 
record,  ?;/z,  7!  19  E.  1,  Rot.  57.  in  dorso,  C.  B.  mentiond  in   Co. 
P.  C.cap.  Id.  p.  71.  vide  simile.  H.  22.  E.  1.     Rot.  33.  in  dorso, 
Cant  Coram  Rege.{*) 

T.  5  E.  3.  Rot.  13.  in  dorso.  Rex  B.  R.  Thomas  of  Carleton 
convict  of  the  rasure  of  the  word  et  in  a  writ,  is  committed  to  the 
marshal,  <§•  inhibitum  est  ei,  ne  amodo  deserviat  in  officio  sive  ser- 
vitio  vicecont\  periculo  quod  incumbit,  and  this  it  seems  was  upon 
the  same  act  of  3  E.  l.(e) 

If  a  clerk  had  made  a  misentry  of  record,  the  judge,  before  whom 
it  was,  might,  ore  tenus,  rectify  that  misentry,  tho  a  considerable 
time  after. 

M.  24  E.  3.  Rot.  41.  Kane.  Rex.  it  was  presented  before  Richard 
de  Kelleshull,  and  his  fellow  justices  of  oyer  and  terminer,  18  E.  3. 
that  one  fVaresius  atte  Capele  had  trespassed  in  the  free  warren  of 
the  earl  of  Huntingdon,  and  the  abbot  of  Battel,  and  he  was  con- 
victed by  his  own  confession,  and  the  clerk  had  entred  the  fine  ten 
shillings.  The  record  being  sent  into  the  king's  bench,  Richard  de 
Kelleshull  came  into  court,  S,"  inspecto  irrotulamento,  said.  Quod 

(c)  Henghatn  was  a  judge  in  the  reign  of  Edward  I.  and  his  fine  was  employed  for 
building  a  clock-house  at  Westminster,  and  furnishing  it  with  a  clock,  which  made 
Southcot  (one  of  the  judges  of  the  king's  bench  in  the  reign  of  queen  Elizabeth,)  when 
prest  by  the  chief  justice  to  consent  to  a  rasure  of  the  roll,  say,  that  he  would  not  do  it, 
for  he  meant  not  to  build  a  clock-house.    Co.  P.  C,  p,  72. 

{d)  2  Co.  JnstU.  213. 

(*)  This  was  the  case  of  Giles  de  Berton,  who  was  convict  eo  quod  scienter  procuravit 
omissionem  did  in  processu  Sf  recordo  coram  justitinriis  de  banco,  quod  coram  rege  venire 
fecit;  on  account  of  which  omission  the  judgment  of  the  court  of  common  pleas  had  been 
reversed,^™  deceplione  pradicta  committitur  marescallo,  Sf  postea  Jinem  fecit  cum  domino 
rege  pro  10  solidis. 

(e)  It  does  not  appear  from  the  record,  whether  the  judgmentwas  grounded  on  statute 
3  E.  1.  or  on  the  common  law. 


647  HISTORIA  PLACITORUM  CORONA. 

clericiis  siius  fiiiem  ilium  surreptive  &  contra  recordum  suum  intra- 
vit,  &  dicit  quod  finis  ille  assessus  fuit  per  ipsum  &  socios  suos  pro 
qnolibet  ariiculo  ad  decern  libras,  &  sic  finis  ejus  ejusdem  fVaresii 
summatus  fuit  ad  viginti  libras,  &  illud  expresse  ore  tenus  hie  recor- 
datur,  and  prayed  for  the  king,  quoa  finis  ille  secundum  recordum 
suum  intrelur  in  rotulis  extractorum,  and  it  was  accordingly  entred ; 
so  that  a  judge  of  record  is  as  it  were  a  living  record,  and  controuls 
the  entry  of  the  clerk. 

In  the  time  of  Jiichard  II.  there  happened  two  great  complaints 
against  the  judges  and  clerks  for  the  misentry  of  a  record:  the  one 
Rot.  Par.  7  R.  2.  pars  1.  n.  57.  for  the  lady  Spencer,  who 
[648]  pleaded  to  a  Quare  Impedit  brought  against  her  by  the 
king;  but  at  the  end  of  Trinity  term  last,  the  record  of 
her  plea  was  rased  in  a  material  place  to  her  great  disadvantage, 
and  the  judges  refused  to  amend  it,  because  after  the  term:  the 
answer  was, 

Tiel  plee  come  les  justices  voillent  recorder  qe  ent  estoit  pledez, 
soit  de  novel  entre  en  le  lieu  de  la  rasure,  nient  contresteant  qe  le 
terme,  en  qel  le  dit  plee  fuit  pled,  soit  ja  pass,  &  roy  voit  qe  celui,  qe 
iist  la  rasure,  soit  punish  pur  son  malfait. 

The  other  was  Rot.  Par.  7  R.  2.  pars  2.  n.  20.  at  the  complaint  of 
the  prior  of  Mountai^ue,  That  whereas  in  a  writ  of  right  brought 
against  him  he  prayed  in  aid  of  the  king,  and  was  ousted  of  aid  by 
the  court,  who  entred  qusesiium  est  a  Priore,  si  quid,  SfC.  the  judg- 
ment that  was  given  was  dictum  est  Priori,  quod  respondeat  sine 
tntxilio;  and  accordingly  the  judges  came  into  parliament  and 
agreed,  that  new  entries  should  be  made,  as  was  desired  by  the 
prior,  and  thereupon  the  prior  brought  a  writ  of  error  in  parliament 
upon  the  record  so  amended. 

These  occurrences  did  the  next  parliament  following,  viz.  8.  R.  2. 
draw  on  the  act  of  8  R.  2.  cap.  4.  against  the  rasing  of  records,  and 
the  false  entring  of  pleas,  whereby  it  is  enacted,  "That  if  any  judge 
or  clerk  be  of  default  (so  that  by  the  same  default  ensueth  disherison 
of  any  of  the  parties)  sufficiently  convict  before  the  king  and  his 
council,  in  that  way  that  the  king  and  his  council  shall  deem  rea- 
sonable, within  two  years  after  the  default  made,  S^c.  he  shall  be 
punished  by  fine  and  ransom  at  the  king's  will,  and  satisfy  the 
party." 

Thus  this  act  settled  it,  and  so  it  stood  till  S  H.  6.  but  in  this  act 
there  occurred  some  inconveniences.  1.  The  way  of  trial  before  the 
king  and  council  was  difficult  and  inconvenient.  2.  The  punish- 
ment as  to  the  clerks  seemed  too  gentle.  3.  It  did  not  meet  with  the 
inconveniences  of  stealing  records.  4.  It  was  found  of  great  incon- 
venience to  the  due  administration  of  justice;  for  the  judges  have 
often  occasion  upon  their  own  memory  of  the  record,  and  some- 
times upon  examination,  to  rectify  undue  entries,  and  were 
r  649  ]  required  in  some  cases  to  amend  the  m'isentries,  or  small 
mistakes  in  records  by  the  statute  of  14  E.  3.  cap.  6.  and 


HISTORIA  PLACITORUM  CORONA.  649 

other  statutes,  which  could  not  be  done  without  rasures  and  altera- 
tions of  the  record  and  roll. 

,  To  remedy  the  latter  of  these  inconveniences  in  the  beginning  of 
this  very  statute  of  8  H.  6.  cap.  12.  and  farther  by  the  statute  of 
8  H.  6.  cap.  15.  a  liberal  power  is  given  to  the  justices  to  amend 
records,  in  the  pursuance  of  which  power  they  were  by  these  act* 
of  S  H.  6.  protected  against  the  dangers  and  severhy  of  the  act 
of  R.  2. 

And  then  this  act  proceeds  to  inflict  punishment  of  felony  against 
clerks  and  others,  that  willingly  avoid  records,  «5'c.  which  penal  law- 
did  not  at  all  extend  to  judges  upon  three  apparent  reasons.  1.  Be- 
cause by  this  vetY  law,  judges  had  power  upon  examination  to 
amend  records.  2.  Because  the  judges  of  the  several  courts  are 
made  the  judges  to  hear  and  determine  these  offenses.  And,  3.  This 
clause  not  mentioning  judges  (as  that  of  8  R.  2.  did,)  but  beginning 
with  clerks  and  other  persons,  judges  shall  not  be  included,  who  are 
superior  officers,  upon  the  reason  given  in  the  2  Co.  Rep.  casus 
archiepiscopi  Cant\  and  accordingly  it  is  agreed  by  my  lord  Coke, 
F.  C.  cap.  1 9.  p.  72. 

Now  I  come  to  the  consideration  of  the  statute  itself,  wherein  my 
lord  Coke,  P.  C.  cap.  19.  hath  made  a  full  collection,  to  which  I  can 
add  little. 

1.  It  extends  only  to  the  four  great  courts  of  Westminster,  and 
not  to  inferior  courts. 

But  as  to  the  English  part  of  the  court  of  chancery,  it  extends  not, 
because  as  to  the  English  proceeding  it  is  no  court  of  record. 

But  yet  it  seems  it  doth  extend  to  those  processes,  that  issue  out 
of  that  court  under  the  great  seal,  tho  they  be  processes  in  order  to 
the  Enqlish  proceeding,"as  siibpitna's,  attachments,  commissions  to 
examine  witnesses,  because  these  being  under  the  great  seal,  are 
matters  of  record. 

2.  The   Treasury  is  added,  which  doth  not  only  extend  to  the 
records  of  the  treasury  of  the  courts  of  king's  bench  and  common 
pleas,  but  also  to  the  records  in  the  receipts  of  the  exche- 
quer, under  the  custody  of  the  treasurer  and  chamberlains  [  650  ] 
of  the  exchequer:  and  also  to  the  records  in  the  Tower,  ^iwd 

in  the  chapel  of  the  rolls,  yea,  and  the  records  in  the  custody  of  the 
clerk  of  the  lords  house  in  parliament,  (but  not  to  the  journals,)  for 
those  are  the  king's  treasuries  of  records  of  the  highest  moment. 

3.  The  offenses  mentioned  are  four,  stealing,  carrying  away,  with- 
drawing, or  avoiding;  and  this  last  word  avoiding  is  comprehensive, 
for  it  extends  to  rasing,  cutting  off,  clipping,  yea,  and  cancelling  a 
record. 

4.  But  these  must  be  done  voluntarily,  as  well  as  felonicl,  and 
both  these  words  must  be  contained  in  the  indictment  upon  this 
statute. 

A  rasing  or  cancelling  of  a  record  by  the  ordei:  of  that  court  in 
whose  custody  the  record  is,  is  no  felony  in  him  that  doth  it,  nor  ia 


650  HISTORIA  PLACITORUM  CORONA. 

the  court  that  commands  it,  for  the  court  hath  a  superintendence,  as 
well  over  the  record  as  over  the  clerks. 

5.  It  extends  not  to  judges  for  the  reasons  before  given. 

6.  It  must  be  such  an  embezzling  or  avoiding  of  the  record,  by 
reason  whereof  a  judgment  is  reversed,  and  therefore  it  extends  only 
to  judicial  records  in  any  of  those  four  courts  or  treasuries,  be  the 
judgment  in  a  case  criminal  or  civil. 

And  therefore  it  is  equally  an  offense  against  this  statute  whether 
the  avoiding,  8f-c.  be  after  judgment  given  or  before,  in  case  judg- 
ment be  given  after  the  offense;  and  it  is  held,  that  an  outlawry,  tho 
it  he  per  judicium  coronalorum,  is  a  judgment  within  this  statute. 

If  the  judgment  be  not  actually  reversed  by  sucli  embezzling,  SfC, 
yet  if  it  be  reversible  by  reason  thereof,  it  is  within  this  statute, 
2  R.  3.  10. 

And  it  extends  not  only  to  a  reversibleness  by  writ  of  error,  but  a 
reversibleness  or  avoidableness  of  judgment  by  plea,  by  reason  of  such 
embezzling,  <5'C.  is  within  this  statute,  2  R.  3.  10. 

But  what  if  the  ofJense  of  embezzling,  avoiding,  or  rasing,  be 

such  as  goes  in  affirmance  of  the  judgment,  and  makes  it 

r  651  l  good,  which  otherwise  were  reversible,  if  it  stood  as  before 

that  offense  committed?  tho  this  in  some  cases  be  punishable 

by  the  court  as  a  misdemeanor  in  the  clerk,  yet  it  seems  not  felony 

within  this  act. 

And  the  common  practice  at  this  day  is,  if  the  Venire  fucia,^  or 
Dis/rinffas  be  erroneous,  and  would  make  the  judgment  erroneous, 
if  filed,  hut  being  not  filed,  is  aided  by  tlie  statute  of  IS  E/iz.  cap.  14. 
the  court  never  compels  the  clerk  to  file  such  writs  after  verdict,  much 
less  punishes  them  for  not  doing  it. 

But  if  .^.  B.  be  sued  by  the  original  to  the  exigent  and  outlawed, 
and  afterwards  the  exigent  is  made  C  B.  and  the  original  is  also 
made  C.  B.  to  make  all  agree,  this  is  felony  as  well  in  the  clerk  that 
raseth  the  original,  as  him  that  raseth  the  exigent.  2  R.  3.  10. 

7.  If  the  oti'ense  riselh  in  two  counties,  then  it  is  dispunishable. 
2  R.  3.  10. 

S.  The  trial  is  to  be  one  half  by  the  clerks  of  the  court,  and  the 
other  half  by  others. 

9.  The  judges  of  the  court  of  the  one  bench  and  the  other  are  by 
this  statute  enabled  to  hear  and  determine  it  without  any  other  com- 
mission, and  each  of  these  courts  have  a  concurrent  jurisdiction,  and 
where  it  first  begins  there  it  is  to  proceed. 

So  that  it  seemeth,  if  the  offense  were  in  the  record  of  the  king's 
bench,  the  justices  of  the  common  bench  may  hear  and  determine  the 
offense,  if  it  be  there  first  indicted. 

This  power  is  to  hear  and  determine;  the  consequence  whereof  is, 
that  it  enables  these  respective  courts  to  take  indictments  of  these 
offenses;  this,  tho  it  be  intrinsical  to  the  court  of  king's  bench,  (for 
they  swear  a  gragd  inquest  and  take  indictments  every  term,)  yet  it 
is  a  new  power  in  the  comiuon  bench. 

And  altho  the  trial  of  the  oflense  is  to  be  by  a  party-jury  of  clerks 


HISTORIA  PLACITORUM  CORONA.  651 

and  others,  yet  the  indictment  may  be  taken  either  of  clerks  alone,  or 
of  foreigners  alone,  or  of  both,  for  it  is  only  the  trial  that  is  to  be  by 
a  party-jury. 

In  the  case  o{  Danby  and  others,  2  R.  3.  10.  these  points 
were  resolved  upon  this  statute,  1.  If  the  offense  be  entirely  [  652] 
committed  in  the  county  where  the  court  of  king's  bench  or 
common  pleas  sit,  it  may  be  tried,  heard  and  determined  by  either 
court  without  a  special  commission,  for  the  act  of  parliament  is  a 
commission.  2.  If  it  be  committed  entirely  in  a  foreign  county,  or 
be  committed  in  the  county  where  the  court  sits,  and  then  the  court 
remove  into  another  county,  it  must  be  heard  and  determined  in  the 
county  where  the  fact  was  committed,  and  cannot  be  indicted,  heard 
or  determined  in  another  county  than  where  it  was  done.  3.  That 
therefore  in  that  case  there  must  be  a  special  commission  to  the  jus- 
tices of  the  one  court,  or  to  the  justices  of  the  other,  to  hear  and  de- 
termine the  offense  in  that  other  county,  and  then  they  may  there 
take  the  indictment  and  try  the  offender  by  a  party-jury  according  to 
the  act ;  but  it  seems,  if  the  indictment  be  taken  by  virtue  of  such  com- 
mission, it  may  be  removed  into  the  king's*ench  by  Certiorari,  if 
indicted  before  them,  and  then  tried  according  to  the  direction  of  the 
act.  4.  If  the  offense  were  committed  in  London,  where,  by  privi- 
lege and  charter  of  the  city,  the  mayor  is  to  be  one  in  commission 
and  oixhe  quorum;  yet  in  this  case  the  mayor  must  not  be  named  in 
the  commission,  but  only  the  justices  of  one  of  the  courts.  5.  If  the 
offense  be  mixt,  and  partly  in  Middlesex,  where  the  court  sits,  and 
partly  in  London,  or  any  other  foreign  county,  the  felony  is  dispun- 
ishable, and  so  it  remains  at  this  day,  notwithstanding  the  statute  of 
2  Sf  3  E.  6.  cap.  24.  6.  But  yet  in  this  case  the  offender  committing 
part  of  the  offense  in  Middlesex,  may  be  indicted  of  misprision  of 
felony  in  Middlesex,  or  committing  part  of  the  offense  in  London, 
may  be  indicted  of  misprision  of  felony  in  London,  and  thereupon 
fined  and  imprisoned:  and  accordingly  it  was  done  by  the  advice  of 
all  the  judges,  and  the  parties  fined,  for  every  felony  includes  mis- 
prision. 

And  yet  observe,  1.  The  felony  was  one  entire  felony  committed 
in  two  counties,  and  therefore  neither  enquirable  nor  determinable  in 
one  county,  for  the  jury  of  that  county  cannot  take  notice 
of  part  of  the  fact  committed  in  another,  and  yet  the  mispri-  [  653  J 
sion  of  that  felony  was  inquirable  and  punishable  in  either 
county,  where  but  part  of  the  felony  was  committed,  and  yet  the 
jury  in  that  case  must  take  notice  of  the  entire  felony,  part  whereof 
was  committed  in  another  county.  2.  Altho  the  felony  itself  is  by 
the  act  limited  to  special  jurisdiction  and  manner  of  trial,  yet  the  mis- 
prision of  that  felony  was  tried  by  a  common  jury,  and  before  the 
general  commissioners  o{  oyer  and  terminer  in  the  county  where  the 
offense  w|^  committed.  In  this  offense  the  offender  hath  the  benefit 
of  clergy. 

11  //".  6.  cap.  14.    It  was  made  felony  for  three  years  to  ship  mer- 
chandizes of  the  staple  in  any  creeks;  but  this  is  expired. 


653  HISTORIA  PLACITORUM  CORONA. 

18  FT.  6.  cap.  15.  Exportation  of  wools,  other  than  to  the  staple 
of  Calais  or  straights  of  Morocco,  felony.  F'ide  supra,  cap.  61. 
p.  642.  (§'  infra. 

18  H.  6.  cap.  19.  Soldiers  departing  from  their  captain  without 
license,  felony.  This,  together  with  those  other  statutes,  of  the  same 
kind,  as  7  H.  7.  cap.  1.  3  H.  8.  cap.  5.  I  shall  refer  to  the  statute  of 
2'E.  6.  cap.  2.  where  I  shall  take  the  whole  matter  of  soldiers  de- 
parting into  consideration. 

28  //.  6.  cap.  4.  It  is  felony  to  take  a  distress  in  the  counties  and 
royal  seignories  in  Wales  or  dntchy  of  Lancaster,  and  carry  them 
out  of  the  said  counties,  dutchy  or  seignories,  ^-c.  saving  for  the  lords 
of  fees  distraining.  This  act  was  to  continue  only  five  years,  and 
then  expired. 

33  H.  6.  cap.  1.  If  houshold  servants,  after  the  death  of  their  mas- 
ter, violently  and  riotously  take  and  spoil  the  goods  of  their  master, 
and  the  same  distribute  among  themselves,  upon  complaint  made  by 
the  executors,  or  two  of  them,  to  the  chancellor,  the  chancellor  with 
the  advice  of  the  chief  justices  and  the  chief  baron,  or  two  of  them, 
shall  direct  writs  of  prOTlamation  to  the  sheriff  for  the  offenders  to 
appear  in  the  king's  bench  upon  some  day  certain,  fifteen  days  at 
least  after  the  proclamation. 

And  if  he  appear,  he  shall  be  committed  to  answer  the 
[6541  suit  of  the  executors  by  bill  or  writ;  but  if  he  appear  not  at 
the  return  of  tlie  writ,  after  proclamation  so  made,  he  shall 
be  attaint  of  felony. 

Tliis  statute  extends  to  one  executor,  if  but  one,  and  to  adminis- 
trators, if  no  executors,  to  a  lord  keeper  of  the  great  seal,  when  no 
chancellor. 

This  was  a  process  much  in  use  in  case  of  great  offenses,  especially 
about  this  king's  reign,  to  convict  men  sometimes  in  civil  offenses, 
some'times  in  cases  criminal  upon  default  of  appearance  at  the  return 
of  the  proclamation.     Vide  Slat.  5  H.  4.  cap.  6.  11  //.  6.  cap.  11. 

But  this  attainder  doth  not  exclude  the  offender  from  clergy.  Co. 
P.  C.  cap.  43.  p.  104. 

12  E.  4.  cap.  5.  All  wools,  woolfells,  morling  and  shorling  of 
Westmoreland,  Cumberland,  Northumberland,  and  Durham,  to  be 
shipped  out,  shall  be  shipped  at  Newcastle  upon  Tine,  and  thence  to 
Calais  or  Middleborough,  there  to  be  stapled  and  uttered,  and  all 
other  wools,  woolfells,  morling  and  shorling,  to  be  conveyed  only  to 
the  staple  of  Calais;  if  any  attempt  to  the  contrary,  it  shall  be  felony, 
saving  the  king's  prerogative  to  license  transportation  elsewhere. 
This  act  to  continue  for  five  years  only,  and  so  it  expired. 

17  E.  4.  cap.  1.  If  any  shall  carry  or  cause  to  be  carried  out  of 
this  realm  or  Wales,  any  manner  of  money  of  the  coin  of  this 
realm,  or  any  other  realm,  plate,  vessel,  mass  bullion,  jewels  of  gold 
wrought  or  unwrought,  or  silver  without  the  king's  licej^e,  except 
the  persons  dispensed  with  by  the  statute  of  2  H.  6.  cap.  6.  it  shall 
be  felony. 

'This  act  was  to  continue  only  for  seven  years. 


HISTORIA  PLACITORUM  CORONA.  654 

And  by  the  act  of  4  H.  7.  cap.  23.  it  was  re-enacted  again  to  con- 
tinue twenty  years;  and  by  the  statute  of  1  H.  S.  cap.  13.  it  was 
continued  till  the  next  parliament, (/)  and  then  discontinued  :  but 
by  the  act  of  7  E.  6.  cap.  6.  it  was  revived  for  twenty  years,  and 
then  expired ;  so  that  at  this  day  the  exportation  of  gold  and  silver 
is  not  felony,  but  remains  only  under  the  penalty  of  those  statutes 
that  prohibit  its  exportation  under  pains  of  forfeiture;  for 
the  act  of  17^5.  3.  did  not  make  exportation  felony.(o-)  [655] 
And  having  this  occasion  I  shall  here  once  for  all  give  an 
account  of  the  laws  in  force  against  the  exportation  of  money  and 
bullion. 

By  the  statute  of  9  E.  3.  cap.  1.  None  are  to  carry  any  sterling 
out  of  the  realm  of  England,  nor  silver  in  plate,  nor  vessel  of  gold, 
or  silver,  upon  pain  of  forfeiture  of  the  same,  that  he  shall  so  carry, 
without  the  king's  license;  this  is  confirmed  in  substance  by  38  E.  3. 
cap.  2.  5  R.  2.  cap.  2. 

By  the  statute  of  2  H.  4.  cap.  5.  If  any  gold  or  silver  be  found  in 
the  keeping  of  any  upon  his  passage  over  sea,  in  any  ship  or  vessel 
to  go  out  of  any  port  or  creek  without  the  king's  license,  it  shall  be 
forfeit,  saving  his  reasonable  expenses. 

Merchants  strangers  to  lay  out  one  half  the  proceed  of  their  mer- 
chandize upon  English  merchandize,  and  may  carry  over  the  other 
moiety. 

By  the  statute  of  4  H.  4.  cap.  15.  All  merchants,  and  strangers, 
and  others,  that  sell  merchandizes  here,  shall  lay  out  the  money 
thereby  arising  in  other  merchandizes  of  England,  to  carry  the 
same  without  carrying  any  gold  or  silver  in  coin,  plate  or  mass  out 
of  this  realm,  upon  pain  of  forfeiting  all  the  same,  saving  always 
their  reasonable  expenses. 

This  act  is  still  in  force,  and  received  a  farther  confirmation  by  the 
statute  of  5  H.  4.  cap.  9.  9  H.  5.  cap.  1. 

2  H.  6.  cap.  6.  No  gold  or  silver  to  be  carried  out  of  the  realm 
contrary  to  the  former  statutes,  except  for  payment  of  the  king's  sol- 
diers, upon  pain  of  forfeiture  of  the  value  of  the  sum  so  carried,  one 
fourth  part  to  the  discoverer,  except  ransom  of  prisoners,  and  money 
that  soldiers  carry  for  their  necessary  costs,  and  for  horses  and  slieep 
bought  in  Scotland. 

3  H.  7.  cap.  8.  All  foreign  merchants  shall  employ  their  money 
received  in  ports,  ^'C.  upon  merchandize  or  commodities  of  this 
real,  the  proof  to  lie  upon  the  merchant,  upon  pain  of  forfeiture  of 
all  his  goods,  and  a  year's  imprisonment.  This  clause  of  the  statute 
of  17  ^.  4.  made  perpetual. 

19  //.  7.  cap.  5.    None  to  convey  any  coin,  bullion,  or 
plate,  above  the  value  of  6.?.  Sd.  out  of  this  realm  into  Ire-  [  656] 
iland,  nor  convey  such  bullion,  plate  or  coin  into  any  ship, 
boat  or  other  vessel,  upon  pain  of  forfeiture  thereof,  and  making  fine 
and  ransom  at  the  king's  will. 

(/)  But  not  as  to  the  penalty  of  felony,  for  that  is  excepted  in  the  act. 
(g)   Except  in  the  searcher,  if  he  confederated  with  any  to  export  it. 


656  HISTORIA  PLACITORUM  CORONA. 

So  these  several  statutes  lie  in  the  way  of  transportation  of  bullion 
or  coin,  tho  the  act  of  HE.  4.  and  other  acts  making  it  felony  are 
now  expired.(/^) 


CHAPTER  LXIII. 

CONCERNING    THE    NEW  FELONIES   ENACTED    IN    THE    TIMES    OF    R.    3. 
H.  7.  H.  8.  E.  6.  AND  QUEEN    MARY. 

I  FIND  no  new  felony  enacted  in  the  short  reign  of  H.  3. 

By  the  statute  of  1  H.  7.  cap.  7.  "At  every  time  as  information 
shall  be  made  of  any  unlawful  hunting  in  any  forest,  park  or  war- 
ren by  night,  or  with  painted  faces,  to  any  of  the  king's  council,  or 
to  any  of  the  justices  of  peace  in  the  county  where  any  such  hunting 
shall  be  had,  of  any  person  so  suspected  thereof,  it  shall  be  lawful 
to  any  of  the  same  council  or  justices  of  peace,  to  whom  such  infor- 
mation shall  be  made,  to  make  a  warrant  to  the  sheriff  of 
[  657  3  the  county,  constable,  bailiff,  or  other  officer  within  the 
same  county,  to  take  and  arrest  the  same  person  or  per- 
sons, of  whom  such  information  shall  be  made,  and  to  have  him  or 
them  before  the  maker  of  the  said  warrant,  or  any  other  of  the 
king's  said  council  or  justices  of  peace  of  the  said  county,  and  that 
the  said  counsellor  or  justice  of  peace,  before  whom  such  person  or 
persons  shall  be  brought,  by  his  discretion  have  power  to  examine 
him  or  them  so  brought  of  the  same  hunting,  and  of  the  said  doers 
in  that  behalf;  and  if  the  same  person  wilfully  conceals  the  same 
hunting,  or  any  person  with  him  defective  therein,  that  then  the 
same  concealment  be  against  every  person  so  concealing,  felony; 
the  same  felony  to  be  inquired  of  and  determined  as  other  felonies 
within  this  realm  have  used  to  be;  and  if  he  t/ioi  confess  the  truth, 
and  all  that  he  shall  be  examined  of  and  knoweth  in  that  behalf, 
that  then  the  said  offenses  by  him  done  be  against  the  king  our 
sovereign  lord  but  trespass  fineable,  by  reason  of  the  said  con- 
fession, at  the  next  sessions  of  the  peace  to  be  holden  for  the  same 
county  by  the  king's  justices  of  the  same  sessions  to  be  there 
sessed;  and  if  any  rescous  or  disobeyance  be  made  by  any  person, 
the  which  so  should  be  arrested,  so  that  the  execution  of  the  same 

(h)  By  13  Sf  14  Car.  2.  cap.  31.  The  melting  down  the  silver  money  of  this  realm  is 
prohibited,  on  pain  of  forfeiting  it,  and  double  tlie  value;  and  by  15  Car.  2.  cap.  7.  it  is 
lawful  to  export  foreign  coin  or  bullion,  provided  an  entry  be  made  thereof  at  the  custom, 
house:  but  by  6  ^  7  W.  3.  cap.  17.  and  1  Sf  8  W.  3.  cap,  19.  before  the  same  be  shipt,  it 
is  necessary  there  should  be  a  certificate  from  the  lord  mayor  and  court  of  aldermen  of 
London,  tliat  oath  had  been  made  before  them  by  tlie  owner  of  the  said  bullion,  and  by 
two  or  more  credible  witnesses,  that  the  said  bullion,  and  every  part  thereof,  is  foreign 
bullion,  and  that  no  part  thereof  was  the  coin  of  this  kingdom,  or  clippings  thereof,  or 
plate  wrought  within  this  kingdom. 


HISTORIA  PLACITORUM  CORONA.  657 

warrant  thereby  be  not  had,  then  the  same  rescous  and  disobeyance 
be  felony  inqnitable  and  determinable,  as  is  aforesaid ;  and  if  any 
person  be  convict  of  such  hunting  with  painted  faces,  vizors,  or 
otherwise  disguised,  to  the  intent  he  should  not  be  known,  or  of 
any  unlawful  hunting  in  the  night,  then  the  same  person  so  convict 
to  have  such  punishment,  as  he  should  have,  if  he  were  convict  of 
felony. "(rt) 

My  lord  Coke,  P.  C.  cap.  21.  hath  given  us  the  whole  learning  of 
this  statute,  viz. 

1.  The  hunting  with  vizors  or  painted  faces  in  the  day- 
time, and  the  hunting  in  the  night  with  or  without  such  [  659  1 
vizors,  is  felony;  but  the  party  may  make  it  trespass  only, 

if  he  pleases.    Dy.  50.  a. 

2.  It  doth  not  extend  to  the  forest,  or  chase,  or  park  of  the  king's, 
{b)  nor  to  forests,  parks,  or  warrens  in  reputation  only,  and  not  in 
right. 

3.  The  complaint  may  be  made  to  any  one  justice  of  peace  or  of 
the  council,  and  the  warrant  may  be  granted  by  any  one. 

4.  The  warrant  must  be  in  writing  under  seal,  and  grounded  upon 
an  examination  shewing  a  probable  cause  of  suspicion. 

5.  When  the  oftender  is  brought,  he  must  be  examined  of  the  fact 
done  by  himself,  and  then  of  the  fact  done  by  others,  but  not  upon 
oath. 

6.  A  hunting  without  killing  is  within  the  penalty. 

7.  Tho  the  hunting  be  not  felony,  yet  the  rescue  or  disobeyance  is 
felony. 

S.  But  the  rescue  or  disobeyance  made  felony  is  only  that  which  is  ' 
done  by  the  party,  not  by  a  stranger. 

And  altho  the  party  rescue  himself,  yet  if  he  be  re-taken,  so  as 
execution  of  the  warrant  be  had,  it  is  no  felony. 

9.  If  the  party  plead  not  guilty,  and  is  convict  of  the  fact,  it  is 
felony;  but  if  he  confess  upon  his  arraignment,  it  then  becomes  only 
a  trespass  finable,  tho  he  denied  it  upon  his  first  examination. 

10.  It  is  held,  that  if  he  confess  not  but  conceals  upon  his  exami- 
nation before  the  justice,  this  alone  makes  it  not  felony,  neither  can 
he  be  indicted  upon  this  statute  for  such  concealment;  but  it  must  be 
a  judicial  concealment,  namely,  if  being  indicted  for  the  hunting  he 
upon  his  arraignment  conceal,  then  he  shall  be  indicted  de  novo  for 
such  concealment;  and  if  convict  thereof,  he  shall  be  attaint  of  felony 

(a)  But  now  by  9  Geo.  1,  cap,  22.  (continued  by  6  Geo.  2^  cap.  37.)  it  is  made  felony 
without  benefit  of  clergy  for  any  person  being  armed  with  any  offensive  weapons,  and 
having  their  faces  blacked  or  disguised,  to  appear  in  any  forest,  chase,  S(C.  or  unlaw- 
fully to  hunt,  kill  or  steal  any  deer,  or  rob  any  warren,  or  steal  tish  out  of  any  river  or 
pond,  or  for  any  person  unlawfully  to  hunt  any  deer  in  the  king's  forests,  4fc.  or 
maliciously  to  break  down  the  head  of  any  fish-pond,  whereby  the  fish  shall  be  lost  or 
destroye<^ 

(b)  As  to  this  case,  a  remedy  was  provided  by  31  //.  8.  cap.  12.  whereby  this  offense, 
if  committed  in  the  king's  forests,  &c.  is  absolutely  made  felony;  but  that  statute  being 
repealed  by  the  general  clause  of  1  E,  6.  cap.  12.  a  remedy  was  again  provided  by  the 
statute  of  9  Geo,  1.  above-mentioned. 


659  HISTORIA  PLACITORUM  CORONA. 

for  concealment,  tho  this  seems  a  difficult  exposition  ;(c)  for  upon  his 
arraignment  for  the  hunting  he  only  answers  to  (hat  indictment,  and 
is  not  examined  touching  others ;  and  besides,  if  he  be  indicted  for 
the  hunting,  if  there  be  evidence  to  convict  him  of  the  fact,  he  is  con- 
vict of  felony  before  the  indictment  for  concealment  comes;  and  if 
there  be  not  evidence  to  convict  him  of  the  principal,  how  shall  there 
be  evidence  to  convict  him  of  the  concealment? 

11.  The  concealment  that  makes  a  felony,  must  be  a  wilful  con- 
cealment. 

By  the  statute  of  3  H.  7.  cap.  2.  It  is  enacted,  "  That  whereas 
women,  as  well  maidens,  as  widows  and  wives  having  substances, 
some  in  moveable  goods,  some  in  lands  and  tenements,  and  some 
being  heirs  apparent  to  their  ancestors,  had  been  often  taken  by  mis- 
doers  contrary  to  their  wills,  and  after  married  to  such  misdoers,  or 
to  others  by  their  assent,  or  defiled  to  the  great  displeasure  of  God, 
contrary  to  the  king's  laws,  and  disparagement  of  the  said  women, 
and  utter  heaviness  and  discomfort  of  their  friends,  and  to  evil  ex- 
ample of  others,  it  is  therefore  ordained,  established  and  enacted  by 
our  sovereign  lord  the  king,  by  the  advice  of  the  lords  spiritual  and 
temporal,  and  commons  in  the  said  parliament  assembled,  and  by 
authority  of  the  same,  That  what  person  or  persons  from  henceforth 
taketh  any  women  so  against  her  will  unlawfully,  that  is  to  say,  maid, 
widow,  or  wife,  that  such  taking,  procuring,  abetting  to  the  same, 
and  also  receiving  wittingly  the  same  woman  so  taken  against  h.er 
will,  and  knowing  the  same,  be  felony;  and  that  such  misdoers, 
takers,  and  procurators  to  the  same,  and  receivers,  knowing  the  same 
offense  in  form  aforesaid,  be  henceforth  reputed  and  judged  as  prin- 
cipal felons.  Provided  that  this  act  extend  not  to  any  per- 
[660]]  son  taking  any  woman,  only  claiming  her  as  his  ward  or 
bond- woman. "[I] 

For  the  making  of  a  felony  within  this  statute,  there  must  be  these 
circumstances  on  the  part  of  the  woman:  1.  That  the  maid,  wife, 
or  widow,  have  substance  of  goods  or  land,  or  be  heir  apparent. 
2.  That  she  be  taken  away  against  her  will.  3.  That  she  be  mar- 
ried to,  or  defiled  by  the  misdoer,  or  some  others  by  his  consent. 
Without  these  three  concurring,  it  makes  no  felony  within  this  sta- 
tute, 3  Ss'  4  P.  S,'  M.  Dallison  22.  4.  That  she  be  not  in  ward,  or  a 
bond-woman  to  the  person  that  taketh  her,  or  causeth  her  to  be  taken 
only  as  his  ward  or  bond-woman.   Co.  P.  C.  cap.  12.  p.  61. 

In  FullwooiVs  case,  M.  13.  Car.  1.  B.  R.  Cro.  jj.  482.  484.  488. 

(c)  This  difficulty  arises  from  the  aforesaid  construction  of  the  act,  tiiat  it  must  intend 
a  judicial  conceuhiient,  wliereas  the  act  seems  plainly  to  mean  a  concealment  upon  his 
examination  before  the  justice;  for  after  the  act  had  given  power  to  the  justice  to  exam- 
ine the  suspected  person,  it  immediately  adds,  and  if  the  same  person  wilfully  conceals, 
^•c.  the  said  concealment  shall  be  felony;  and  if  he  tlien  confess  the  truth,  and  all  that  he 
shall  be  examined  of,  his  offense  shall  be  but  trespass;  the  word  then  shews  l|^e  lime  of 
confession  to  be  at  the  examination,  and  therefore  the  concealment  likewise  must  be 
intended  to  be  at  that  time. 

[1]  Now  repealed  and  supplied  by  9.  Geo.  IV.  c.  31.    See  ante,  note  to  c.  59.^.  639. 


HISTORIA  PLACITORUM  CORONJi:.  660 

492.  these  points  were  resolved:  1.  That  if  a  woman  be  taken  away 
forceably  in  the  county  of  Middlesex,  and  married  in  the  county  of 
Surrey, iho.  fact  is  indictable  in  neither  county;  for  the  taking  without 
the  marriage,  nor  the  marriage  without  the  taking,  make  not  felony. 
2.  But  if  she  were  taken  in  the  county  of  Middles  ex,  3Lud  carried  into 
the  county  of  Surrey,  so  that  it  is  a  continuing  force  in  Surrey,  tho 
begun  in  Middlesex,  and  then  she  is  married  in  Surrey,  there  the 
offender  may  be  indicted  upon  this  statute  in  Surrey.  3.  Tho  pos- 
sibly the  marriage  or  the  defilement  might  be  by  her  consent,  being 
won  thereunto  by  flatteries  after  the  taking,  yet  this  is  felony,  if  tlie 
first  taking  away  were  against  her  will, (a?)  4.  That  if  as  well  the  mar- 
riage as  the  taking  away  were  against  her  will,  so  that  the  marriage 
was  voidable,  yet  it  is  a  marriage  de  facto,  and  therefore  being  taken 
away  against  her  will,  and  also  married  against  her  will,  it  is  felony 
within  this  statute.  5.  That  it  is  not  necessary  in  the  indictment  to 
say,  that  she  was  taken  ed  intetitione  to  marry  or  defile  her,  because 
the  statute  hath  no  such  words  of  ed  intentione.  But  farther,  he 
marrying  her  the  same  day  he  took  her,  it  must  needs  appear,  that  it 
was  ed  intentione ;  yet  these  words,  ed  intentione  ad  ipsam  mai'i- 
tand',  are  usually  added  in  indictments  upon  this  statute, 
and  it  is  safest  so  to  do.  6.  That  the  woman  thus  taken  [661  ] 
away  and  married  may  be  sworn  and  give  evidence  against 
the  offender,  who  so  took  and  married  her,  tho  she  be  his  wife  de 
facto. [2'] 

And  all  these  points  were  accordingly  resolved,  H.  24  8,-  25  Car.  2. 
in  Brown's  case,(e)  upon  this  statute,  only  the  indictment  ran,  cepit 
ed  intentione  ad  ipsam  maritandam:  the  offender  was  convict  and 
executed:  and  the  reasons  why  the  woman  was  sworn  and  gave  evi- 
dence in  the  case  of  Brown  were,  1.  Because  the  taking  away  of  the 
woman  and  marrying  were  the  same  day,  and  she  was  rescued  out 
of  their  hands,  and  the  offender  taken  the  next  day,  and  so  all  done 
flagrante  crimine.  2.  It  was  but  a  forced  marriage,  and  so  no  mar- 
riage de  jure.  3.  There  was  no  cohabitation.  4.  Concurring  evi- 
dence to  prove  the  whole  fact.  But  had  she  freely  without  constraint 
lived  with  him  that  thus  married  her,  any  considerable  time,  her  ex- 
amination in  evidence  might  be  more  questionable. 

By  the  statute  of  39  Eliz.  cap.  9.  Clergy  is  taken  away  from  the 
principals,  procurers,  and  accessaries  before  the  offense  committed. 

By  this  act  of  3  H.  7.  the  procurers,  as  well  as  the  misdoers  them- 
selves, and  any  person  that  receives  the  woman  thus  taken  away,  are 

{d)  And  so  it  was  resolved  in  Swendsen's  case,  M.  1  Ann.  State  Tr.  Vol.  V.  p.  468.  in 
which  case  most  of  the  other  points  here  mentioned  were  likewise  ruled, 
(e)  3  Keb.  193.  I  Ven.  243. 


[2]  2  East's  P.  C,  454,  who  cites  Hale  301,  and  tlie  passage  supra.  Rex  v.  Brown, 
1  Venlr.  R.  243.  Haniren  Swendsen's  case,  5  St.  Tr.  456.  Wukejield' s  case,  2  Lew.  C. 
C.  1.  20.  279.  Reg.  v.  Yore,  1  Jebh  6f  Sy.  R.  563.  572.  Rex  v.  Sergeant.  Rij.  Sj  M.  352. 
3  Chitty's  Cr.  L.  817.  note  (y).  Rose,  on  Cr.  Ev.  115.  121.  1  Greenl.  on  Ev.  §  343. 
1  Russ.  on  Cri7n.  709,  710.  Ed.  1845. 

VOL.  I. — 56 


661  HISTORIA  PLACITORUM  CORONA. 

principals  by  this  statute,  and  so  ousted  of  clergy;  but  he  that  receives 
the  offender  knowingly,  is  only  accessary  after,  and  not  excluded 
from  clergy. 

Quxre,  Whether  tho  the  receiver  of  the  woman  be  made  princi- 
pal by  the  act  of  3  H.  7.  he  were  intended  to  be  ousted  of  clergy  by 
39  Eliz.  cap  9. 

The  statute  of  3  H.  7.  cap.  14.  recites,  "That  forasmuch  as  by 
quarrels  made  to  such  as  have  been  in  great  authority,  office,  and  of 
council  with  the  kings  of  this  reahn,  hath  ensued  the  destruction  of 
the  kings  and  undoing  of  this  realm, so  as  it  hath  appeared  evidently, 
when  compassing  of  the  death  of  such  as  were  the  king's  true  sub- 
jects was  had,  the  destruction  of  the  prince  was  imagined  thereby, 
and  for  the  most  part  it  hath  grown  by  the  malice  of  the  king's  own 

houshold  servants,  as  now  of  late  such  a  thing  was  like  to 
[  662  ]  have  ensued;  and  forasmuch  as  by  the  law  of  this  land,  if 

actual  deeds  be  not  had,  there  is  no  remedy  for  such  false 
compassings,  imaginations,  and  confederacies  had  against  any  lord, 
or  any  of  the  king's  council,  or  any  of  the  king's  great  officers  in  his 
houshold,  as  steward,  treasurer,  comptroller,  and  so  great  inconve- 
niences might  ensue,  if  such  ungodly  demeaning  should  not  be  straitly 
punished  before  that  actual  deed  were  done;  therefore  it  is  ordained 
by  the  king,  and  the  lords  spiritual  and  temporal,  and  the  commons 
of  the  said  parliament  assembled,  and  by  authority  of  the  same,  that 
from  henceforth  the  steward,  treasurer,  and  comptroller  of  the  king's 
house  for  the  time  being,  or  one  of  them,  shall  have  full  power  and 
authority  to  inquire  by  twelve  sad  men  and  discreet  persons  of  the 
exchequer  roll  of  the  king's  houshold,  if  any  person  admitted  to  be. 
his  servant,  sworn,  and  his  name  put  into  the  chequer  roll  of  his 
houshold,  whatsoever  he  be,  serving  in  any  manner,  office  or  room, 
reputed,  had  or  taken,  under  the  state  or  degree  of  a  lord,  make  any 
conspiracies,  compassing,  confederacies  or  imaginations  with  any  per- 
son or  persons  to  destroy  or  murder  the  king,  or  any  lord  of  this 
realm,  or  any  other  person  sworn  to  the  king's  council,  steward, 
treasurer,  or  comptroller  of  the  king's  house,  that  if  it  be  found  before 
the  said  steward  for  the  time  being  by  the  said  twelve  sad  men,  that 
any  such  of  the  king's  servants  as  is  abovesaid,  hath  confederated, 
compassed,  conspired,  or  imagined,  as  is  abovesaid,  that  he  so  found 
by  that  inquiry  be  put  thereupon  to  answer,  and  the  steward,  trea- 
surer, and  comptroller,  or  two  of  them,  have  power  to  determine  the 
same  matter  according  to  the  law;  and  if  he  put  him  in  trial,  that 
then  it  be  tried  by  other  twelve  sad  men  of  the  same  houshold;  and 
that  such  misdoers  have  no  challenge  but  for  malice.  And  if  such 
misdoers  be  found  guilty  by  confession  or  otherwise,  that  the  said 
otfense  be  judged  felony,  and  they  to  have  judgment  and  execution 
,  as  felons  attaint  ought  to  have  by  the  common  law." 

Vide  the  observations  of  my  lord  Coke  upon  this  act,  Co. 
[663]   P.  C.  cap.  4.  where  on  the  part  of  the  offender  there  must 

be  these  qualifications,  viz.  1.  He  must  be  the  king's  sworn 
servant.     2.  His  name  must  be  in  the  chequer  roll.     3.  He  must  be 


HISTORIA  PLACITORUM  CORONJG.  663 

under  the  degree  of  a  lord.     4.  Tho  his  conspiring  with  another  not 
of  the  houshold  be  an  oflense,  yet  he  only  of  the  houshold  is  the  felon. 

On  the  part  of  the  person  against  whom  the  conspiracy  is,  are 
these  requisites:  1.  The  conspiracy  to  murder  the  king;  or  2.  A  lord 
of  the  realm,  but  yet  only  such  as  is  sworn  of  the  king's  privy  coun- 
cil. 3.  Any  other  of  the  king's  privy  council,  tho  under  the  degree 
of  a  lord.  4.  The  steward,  treasurer,  or  comptroller  of  the  king's 
house,  tho  neither  a  lord  nor  of  the  privy  council. 

The  power  to  hear  and  determine.  1.  The  steward,  treasurer,  and 
comptroller,  [or  any  two  of  them,  have  power  to  determine,*]  tho 
the  act  saith,  they  or  any  one  of  them  may  inquire.  2.  If  a  servant 
of  the  king's  house,  ut  supra,  conspire  the  death  of  the  steward, 
treasurer,  and  comptroller,  yet  they  remain  the  only  judges  in  this 
cause  by  this  act,  tho  they  may  take  others  to  their  assistance,  yet 
none  but  they  sit  as  judges.  3.  The  presentment  and  trial  must  be 
only  by  the  servants  of  the  houshold.  4.  The  inquiry  may  be  by 
twelve  or  more,  but  the  trial  only  by  twelve.  5.  No  challenge  but 
for  malice.  6.  The  conspiracy  must  be  plotted  in  the  king's  hous- 
hold.    7.  The  offender  is  to  have  his  clergy. 

And  note,  this  being  a  new  made  felony,  and  the  manner  of  its 
determination  particularly  limited,  it  is  not  determinable  before  any 
other  judges,  or  in  any  other  courts,  neither  in  the  king's  bench,  oyer 
and  terminer,  or  gaol  delivery.  Qusere,  whether  their  session  must 
not  be  in  the  king's  house. 

By  the  statute  of  7  H.  7.  cap.  1.  There  is  provision  of  felony  against 
captains  and  soldiers  leaving  their  service ;  but  this  I  shall  take  up 
hereafter,  as  also  the  statute  of  3  H.  8.  cap.  5.  which  I  shall  refer  to 
4  <^'  5  P.  <^-  M.  cajj.  3. 

I  come  to  the  time  of  H.  8.  which  was  fruitful  in  enact- 
ing new  treasons  and  ^new  felonies,  and  new  offenses  as  to  [  664  ] 
Prsemn7nre. 

But  there  were  two  acts  of  parliament,  that  repeald  as  all  new  trea- 
sons and  misprisions  of  treasons,  so  all  new  felonies  enacted  at  any 
time  after  the  first  day  of  the  reign  of  Henry  8.  viz. 

1  E.  6.  cap.  12.  Whereby  it  is  enacted,  "  That  all  offenses  made 
felony  by  any  act  or  acts  of  parliament  made  since  the  23d  day  of 
Jipril,  in  the  first  year  of  the  reign  of  king  H.  8.  not  being  felony 
before,  and  also  all  and  every  the  branches  and  articles  mentiond, 
or  in  any  ways  declared  in  any  of  the  said  statutes  concerning  the 
making  of  any  offense  or  offenses  to  be  felony,  not  being  felony 
before;  and  aU  pains  and  forfeitures  concerning  the  same,  or  any  of 
them,  shall  from  henceforth  be  repeald,  and  utterly  void  and  of  none 
effect." 

1  Mar.  cap.  1.  whereby  it  is  enacted,  "That  all  offenses  made 
felony,  or  limited  to  be  within  the  case  of  Prsemnnire,  by  any  act  or 
acts  of  parliament,  statute  or  statutes  made  since  the  first  day  of  the 

*  The  words  here  in  the  MS.  are,  Or  any  one  or  any  two  of  them  have  power  to  inquire, 
but  they  seem  plainly  to  have  been  so  written  by  mistake,  the  sense  requiring  them  to 
be  as  above. 


664  HISTORIA  PLACITORUM  CORONiE. 

first  year  of  the  reign  of  king  Henry  8.  not  being  felony  before,  nor 
within  the  case  o{  Proemunire,  and  all  and  every  branch,  article  and 
clause. mentiond,  or  in  any  ways  declared  in  any  of  the  said  statutes 
concernit)g  the  making  of  any  offense  or  offenses  to  be  felony,  or 
within  the  case  of  Prsemunire  before,  and  all  pains  and  forfeitures 
concerning  the  same,  or  any  of  them,  shall  from  henceforth  be  repeald 
and  utterly  void,  and  of  none  effect." 

The  former  of  these  statutes,  and  also  the  latter  repeald  all  new 
felonies  enacted  in  the  time  of  H.  8.  who  began  his  reign  April  22. 
1509.  and  the  latter  of  these  statutes  repeald  also  the  new  created 
felonies  in  the  reign  of  E.  6. 

But  neither  of  Ihese  statutes  did  extend  to  piracy  or  robbery  upon 
the  sea,  nor  any  such  act  as  concerned  matter  of  proceedings  touch- 
ing felonies,  that  were  such  before  the  time  of  H.  8.  and  therefore 
those  statutes  in  the  time  of//.  8.  that  concerned  clergy,  sanctuary, 
peremptory  challenge,  place  or  manner  of  trial  of  felons,  or 
r  665  3  the  erecting  of  new  jurisdictions  for  their  trial,  as  that  of 
33  H.  8.  caj).  12.  for  felonies  in  the  king's  court;  for  these  acts 
were  not  constitutive  of  new  felonies,  but  only  directions  of  the  course 
of  proceedings  in  cases  of  old  felonies. 

Those  statutes  that  made  new  felonies  both  in  the  time  of  H.  8. 
and  E.  6.  are  therefore  of  these  kinds,  viz. 

1.  Such  as  were  enacted  de  novo  in  the  times  of  H.  8.  and  E.  6. 
and  were  never  after  revived  or  re-enacted  by  any  subsequent  act  of 
parliament;  such  were  those  of  31  H.  8.  cap.  2.  of  breaking  the 
heads  of  ponds,  and  taking  fish,  31  H.  8.  cap.  12.  and  32  H.  8.  cap. 
11.  stealing  of  hawks  eggs,  and  hunting  in  the  king's  forests,  <^«c. 
33  //.  8.  cap.  8.  of  witchcraft.  33  H.  8.  cap.  14.  of  prophecies. 
37  H.  8.  cap.  6.  The  burning  of  a  frame  of  timber.  37  H.  8.  cap.  10. 
Libellous  papers  charging  men  to  have  spoken  treason.  23  H.  8. 
cap.  11.  Breaking  prison. 

2.  Such  as  were  repeald  but  enacted  again  in  the  same  kind,  but 
with  some  alterations,  as  22  H.  8.  cap.  10.  concerning  Egyptians, 
altered  by  1  4*  2  P.  S,-  M.  cap.  4.  and  by  5  Eliz.  cap.  20. 

3.  Such  as  were  de  novo  enacted  to  be  felonies  in  the  times  of 
H.  8.  and  E.  6.  and  repeald,  but  re-enacted  again,  as  22  H.  8.  cap.  1 1. 
touching  cutting  of  Powdike,  renewed  by  2  <§*  3  P.  %•  M.  cap.  19. 

3  H.  8.  cap.  5.  concerning  soldiers,  re-enacted  in  a  great  measure  by 

2  E.  6.  cap.  2.  and  4  S,-  5  P.  S,'  M.  cap.  3.  21  H.  8.  cap.  7.  servants 
embezzling  their  masters  goods,  by  5  Eliz.  cap.  10.  25  H.  8.  cap.  6. 
concerning  buggery,  by  5  Eliz.  cap.  17.  23  //.  8.  cap.  16.  concern- 
ing Scotchmen,  re-enacted  by  1  Eliz.  cap.  7.  but  finally  repeald  by 

4  Jac.  1.  cap.  1. 

4.  Some  offenses  were  made  felony  by  former  acts  of  parliament 
before  H.  8.  but  had  additions  to  them,  ex.tending  the  felonies  farther 
than  the  old  acts,  some  such  thing  may  be  found  in  the  statute  of 

3  H.  8.  cap.  5.  concerning  soldiers  in  relation  to  the  statute  of  7  H.  7. 
cap.  1.  and  then  the  old  felonies  stand,  but  the  additional  felonies  are 
repeald. 


HISTORIA  PLACITORUM  CORONiE.  666 

Concerning  the  first  of  these  ranks  of  acts  I  shall  say  nothing, 
because  they  are  now  utterly  void;  but  concerning  the  other  three 
ranks  of  statutes,  I  shall  proceed  according  to  their  order  of  time. 

First,  For  the  statute  of  3  H.  8.  cap.  5.  as  also  that  of  2  E.  6.  cap. 
2.  concerning  soldiers,  I  shall  refer  them  to  the  statute  of  4  <§'  5.  P.  4* 
M.  cap.  IS. 

By  the  statute  of  21  H.  8.  cap.  7.  it  is  enacted,  "That  all  and  sin- 
gular servants,  to  whom  any  caskets,  jewels,  money,  goods  or  chat- 
tels, by  his  or  their  masters  or  mistresses,  shall  from  henceforth  be 
delivered  to  keep,  that  if  any  such  servant  or  servants  withdraw 
themselves  from  their  masters  or  mistresses,  and  go  away  with  the 
said  caskets,  jewels,  money,  goods  or  chattels,  or  any  part  thereof,  to 
the  intent  to  steal  the  same,  and  defraud  his  or  their  masters  or  mis- 
tresses thereof,  contrary  to  the  trust  and  confidence  to  him  or  them 
put  by  his  or  tlieir  masters  or  mistresses,  or  else  being  in  the  service 
of  his  or  their  master  or  mistresses  without  any  assent  or  command- 
ment of  his  master  or  mistress,  embezzle  the  same  caskets,  jewels, 
money,  goods  or  chattels,  or  any  part  thereof,  or  otherwise  convert 
the  same  to  his  own  use  with  like  purpose  to  steal  it,  that  if  tlie  said 
casket,  jewels,  money,  goods  or  chattels,  that  any  such  servant  shall 
go  away  with,  or  which  he  shall  embezzle  with  purpose  to  steal  as 
aforesaid,  be  of  the  value  of  forty  shillings,  or  above,  that  then  the 
same  false,  fraudulent,  or  untrue  act  and  demeanor  shall  from  hence- 
forth be  deemed  and  adjudged  felony,  &c.  Provided  it  extends  not 
to  apprentices,  nor  to  any  person  under  the  age  of  eighteen  years; 
but  every  such  apprentice  or  person  within  that  age  doing  that  act 
shall  be  and  stand  in  the  like  case  as  they  were  before  the  making 
of  this  act.    This  act  to  endure  till  the  next  parliament." 

By  the  act  of  27  H.  8.  cap.  17.  Clergy  was  taken  away  in  this 
case,  if  the  indictment  were  laid  specially  upon  the  act  of  21  i^.  8. 
and  pursuant  to  the  same;  and  by  the  act  of  28  H.  8.  cap.  2.  this  act 
of  21  H.  8.  was  made  perpetual;  but  by  the  act  of  1  E.  6.  cap.  12. 
these  acts  were  both  repealed. 

But  again,  by  the  act  of  5  Eliz.  cap.  10.  this  act  of  21 
H.  8.  was  re-enacted  and  revived,  yet  it  did  not  revive  the  [  667  ] 
act  of  27  H.  8.  cap.  17.  for  taking  away  clergy.  1.  Because 
the  words  of  the  reviving  act  of  5  Eliz.  revive  only  the  act  of 
21  H.  8.  specially  and  particularly  by  name,  and  not  any  other 
incident  act  concerning  clergy.  And  again,  2.  Because  the  acts 
taking  away  clergy  were  specially  repealed  by  the  statute  of  1  E.  6. 
cap.  12,  except  in  those  cases  there  particularly  enumerated,  so 
that  at  this  day  a  party  indicted  and  convict  upon  this  statute  hath 
his  clergy.(/) 

And  tiole,  that  in  this  case,  and  all  other  cases  of  this  nature 
where  a  statute  is  repealed  and  re-enacted,  an  indictment  or  infor- 

(/)  But  by  12  Ann.  cap.  7.  Clergy  is  in  such  case  taken  away  from  facts  committed 
in  any  house  or  out-house,  except  as  to  apprentices  under  the  age  of  fifteen  years,  rol)- 
bing  their  masters. 


667  '  HISTORIA  PLACITORUM  CORONA. 

mation  may  conclude  either  contra  formom  statutorum,  or  contra 
formam  statiiti,  for  it  shall  be  intended  the  last  statute.  And  so  it 
is,  if  a  statute  be  but  temporary  and  then  expires,  and  then  is  re- 
enacted ;  but  if  a  statute  be  continued  till  the  end  of  the  next  session 
of  parliament,  and  before  that  next  session  be  ended  it  is  continued 
over,  the  indictment  may  run  contra  formam  of  the  first  statute,  for 
it  never  was  interrupted,  or  it  may  conclude  contra  formam  statu- 
torum. F.  42  Eliz.  B.  R.  Dingly  and  Moore,{g)  M  31  4'  32  Eliz. 
B.  R.  Milt's  case. 

This  statute  was  introductive  of  a  new  law,  when  the  goods  were 
actually  delivered  to  the  servant  that  goes  away  with  them;  for 
where  there  is  such  a  delivery  it  could  not  at  common  law  be  a 
felony. 

But  yet  a  servant  might  be  guilty  of  felony  at  common  law,  if  he 
takes  the  goods  of  his  master  feloniously,  nay,  tho  they  be  goods 
under  their  charge,  as  a  shepherd,  butler,  6,'C.  vide  supra,  cop.  43. 
p.  505.  and  for  this  he  may  be  indicted  at  this  day  as  a  felony  at 
common  law,  and  of  this  felony  at  common  law,  an  apprentice  or 
servant  under  the  age  of  eighteen  years  may  be  guilty,  and  indicted 
thereof  at  common  law. 

And  therefore  tho  the  statute  of  21  H.  8.  exempt  an  apprentice  or 
servant  under  the  age  of  eighteen  years  from  the  pain  of 
r  668  3  felony  enacted  de  novo  by  this  statute,  namely,  where  goods 
are  actually  delivered  to  him,  yet  it  leaves  him  in  the  same 
condition  as  to  any  felony  at  common  law,  as  if  he  were  not  except- 
ed; and  therefore  if  my  butler  or  shepherd,  under  the  age  of  eighteen 
years,  or  if  my  apprentice  takes  away  my  goods  feloniously  without 
my  actual  delivery,  tho  they  are  under  the  value  of  forty  shillings, 
he  is  indictable  of  felony  at  common  law. 

If  I  deliver  my  servant  a  bond  to  receive  money,  or  deliver  him 
goods  to  sell,  and  he  receives  the  money  upon  the  bond  or  goods, 
and  goes  away  with  it,  this  is  not  felony  at  common  law  because  the 
money  is  delivered  to  him,  nor  felony  by  this  statute,  because  tho 
the  bond  or  goods  were  delivered  him  by  the  master,  yet  the  money 
was  not  so  delivered  by  the  master.  Di/.  5.  a.  Co.  P.  C.  cap.  44. 
And  yet  by  the  very  payment  of  the  money  to  the  servant  to  the 
master's  use,  the  master  is  by  law  said  to  be  actually  possessed  of 
this  money;  and  if  taken  away  from  the  servant  by  a  trespasser  or 
robber,  the  master  may  have  a  general  action  of  trespass,  or  action 
upon  the  statute  of  hue  and  cry. 

But  it  is  held,  that  if  the  master  delivers  to  the  servant  twenty 
pounds  in,  silver  to  change  it  into  gold  at  the  goldsmith's  or  leather 
to  make  shoes,  and  he  run  away  with  the  gold  or  shoes,  it  is  felony. 
Crompt.  Justic.  35.  b. 

If  Ji.  hath  two  servants,  B.  and  C.  B.  by  the  command  of  Jl.  the 
master,  and  in  his  presence  delivers  the  master's  goods  to  C.  by  the 

{g)  Cro.  Eliz.  750. 


HISTORIA  PLACITORUM  CORONA.  668 

master's  command,  and  C.  runs  away  with  it,  this  is  felony  within 
the  statute,  for  it  is  the  master's  dehvery;  but  suppose  it  be  de- 
livered by  the  master's  command,  but  in  the  master's  absence, 
qusere,  whether  this  be  within  the  statute,  and  what  ditference  there 
is  between  this  case  and  the  receiving  money  from  a  creditor  by  the 
master's  directions?  yet  vide  Dy.  5.  it  seems  felony. 

If  the  master's  wife  delivers  goods  of  the  master  to  the  servant  to 
keep,  and  he  goes  away  with  it,  it  seems  this  is  within  the  statute, 
for  he  hath  them  by  delivery  of  his  mistress,  and  the  master's  wife  is 
as  well  his  mistress,  as  if  she  were  sole,  vide  statute  25  E.'i.  for  petit 
treason. 

By  the  statute  of  22  H.  S.  cap.  11.  Every  perverse  and 
malicious  cutting  down  of  the  new  Powdike  ot  Marshland,  ["669  1 
or  of  the  old  Powdike  of  the  isle  of  Ely,  or  of  any  part 
thereof,  or  of  any  other  bank,  being  part  of  the  rind  and  uttermost 
part  of  the  country  of  Marshland,  made  for  the  defense  thereof, 
other  than  working  upon  the  same  for  repairing  or  amending  the 
fortifying  thereof,  is  enacted  to  be  felony. 

This  act  was  repealed  by  1  E.  6.  cap.  12.  and  1  Mar.  cap.  1.  but 
is  revived  by  2  4'  3  P.  <§'  M.  cap.  19.  and  so  continues. 

But  the  offender  hath  the  benefit  of  clergy. 

By  the  statute  of  23  H.  8.  cap.  16.  The  selling  of  a  horse  to  a 
Scotchman,  or  delivering  a  horse  in  Scotland  is  made  felony. 

This  was  repealed  by  1  E.  6.  cap.  12.  and  tho  made  penal  by  the 
act  of  1  E.  6.  cap.  5.  yet  never  revived,(A)  and  the  acts  of  this  kind 
are  repealed  by  4  Jac.  1.  cap.  1.  as  to  Scotland. 

By  the  act  of  25  H.  8.  cap.  6.  buggery  with  mankind  or  beast  is 
enacted  to  be  felony,  and  the  felon  excluded  from  clergy. 

This  statute  was  repealed  by  the  general  act  of  1  E.  6.  cap.  12.  and 
in  2  E.  6.  cap.  29.  it  was  enacted  to  be  felony  without  clergy,  but 
without  loss  of  lands  or  goods,  or  corruption  of  blood. 

But  this  act  of  2  E.  6.  was  repealed  by  the  statute  of  1  Afar, 
cap.  1.  and  so  both  acts  stood  repealed  until  5  Eliz. 

But  by  the  statute  of  5  Eliz.  cap.  17.  the  entire  act  of  25  H.  8. 
cap.  6.  is  revived  and  re-enacted,  so  that  this  offense  stands  at  this 
day  absolutely  felony  without  benefit  of  clergy. 

To  make  buggery  there  must  be  penetratio,  as  in  case  of  rape. 
Vide  supra,  p.  628. 

A  woman  may  be  guilty  of  buggery  with  a  beast  within  this 
statute. 

If  buggery  be  committed  upon  a  man  of  the  age  of  dis- 
cretion, both  are  felons  within  this  law.  [_  670  J 

But  if  with  a  man  under  the  age  of  discretion,  viz.  four- 
teen years  old,  then  the  buggerer  only  is  the  felon. 

Those  that  are  present,  aiding  and  abetting,  are  all  principals;  the 
statute  making  it  felony  generally;  there  are  or  maybe  accessaries 

Qi)  This  must  be  some  mistake  in  the  MS.  for  this  statute  was  revived,  as  our  author 
himself  says  a  little  above,  p.  665.  by  1  Eliz.  cap.  7.  tho  afterwards  repeal'd  by 
4  Jac.  I  cap. 


670  HISTORIA  PLACITORUM  CORONiE. 

before  and  after,  as  in  case  of  rape.  But  tho  none  of  the  principals 
are  admitted  to  their  clergy,  yet  accessaries  before  and  after  are  not 
excluded  from  clergy. 

Touching  the  time  of  E.  6.  I  do  not  find  any  new  felony  enacted, 
but  that  of  2  4*  3  E.  6.  cap.  6.  which  I  shall  hereafter  consider,  when 

1  come  to  4  4'  5  P.  8^-  M.  cap.  3. 

In  the  time  of  queen  Mary  we  find  these  statutes  following 
making  new  felonies. 

By  the  statute  oi  \  8f  2  P.  Sr  M.  cap.  4.  "  If  any  outlandish  people 
calling  themselves  or  being  called  Egyptians,  shall  remain  in  this 
realm  or  Wales  one  month  at  one  or  several  times.  And  if  any 
person  being  fourteen  years  old,  which  hath  been  seen  or  found  in 
the  fellowship  of  such  Egyptians,  or  which  hath  disguised  him  or 
herself  like  them,  shall  remain  here  or  in  Wales  one  month  either  at 
one  or  several  times,  it  is  felony. "(/) 

The  trial  to  be  by  the  inhabitants  of  the  county,  where  they  are 
taken,  and  not  per  medietatem  linguse,  no  sanctuary  or  clergy  to  be 
allowed. 

A  proviso,  that  it  extend  not  to  their  children  under  thirteen  years 
old. 

And  by  the  statute  of  5  Eliz.  cap.  20.  the  act  of  1  4'  2  P.  <§•  M.  is 
confirmed  and  extended  to  all  above  the  age  of  fourteen  years,  that 
shall  be  found  in  the  company  of  vagabonds,  commonly  called  or 
calling  themselves  Egyptians,  or  counterfeiting  or  disguising  them- 
selves by  their  apparel,  speech  or  behaviour  like  them,  if  they  con- 
tinue one  month,  altho  they  are  persons  born  in  the  king's  dominions. 
Clergy  is  ousted. 

I  have  not  known  these  statutes  much  put  in  execution, 
[]  671  3  only  about  twenty  years  since  at  the  assizes  at  Bury  about 
thirteen  were  condemned  and  executed  for  this  offense. 

I  am  now  come  to  that,  which  I  have  all  along  promised,  namely, 
the  felony  of  soldiers  running  from  their  captains,  enacted  by  several 
statutes,  as  namely,  18  H.  6.  cap.  19.  7  H.  7.  cap.  1.  3  H.  8.  cap.  5. 

2  S)'  3  E.  6.  cap.  2.  repeal'd  by  1  Mar.  cap.  1.  and  revived  by  4  <^  5 
P.  S,'  M.  cap.  5.  and  the  statute  of  5  Eliz.  cap.  5. 

I  shall  take  up  the  whole  matter  together,  beginning  with  the  an- 
tient  statutes,  and  so  descending  downwards  to  the  latter. 

By  the  statute  of  IS  H.  6.  cap.  18.  It  is  recited,  "That  divers  cap- 
tains, that  were  retained  by  indenture  to  serve  the  king,  some  beyond 
the  seas  and  some  in  the  marches,  had  defrauded  the  soldiers  under 
their  retiiuie  of  their  pay;  and  enacts,  that  no  captain,  which  shall 
have  the  conduct  of  such  retinue,  and  shall  receive  the  king's  wages 
or  the  same,  shall  abate  his  soldiers  their  wages,  except  it  be  for 
I  heir  cloathing,  that  is  to  say,  if  they  shall  be  waged  for  half  a  year, 
ten  shillings  a  gown  for  a  gentleman,  six  shillings  and  eight  pence  for 

(i)  Our  author  has  here  copied  from  Co.  P.  C,  rap.  39.  where  the  two  statutes  of 
1  S(  2  P.  Sf  M.  and  5  Eliz.  cap,  20.  are  blended  together;  for  this  last  clause  and 
the  words  at  one  or  several  times  in  the   first   clause   belong  to  5  Eliz.  and   not  to 


HISTORIA  PLACITORUM  CORONiE.  671 

a  yeoman,  upon  pain  to  forfeit  twenty  pounds  for  a  spear,  ten  pounds 
for  a  bow  to  the  king,  for  whom  he  did  abate." 

And  by  the  statute  of  18  H.  6.  cap.  19.  It  is  recited  and  enacted, 
as  followeth,  "  Whereas  many  soldiers,  which  have  taken  parcel  of 
their  wages  of  their  captains,  and  so  have  muster'd  and  been  entred 
of  record  the  king's  soldiers  before  his  commissioners  for  such  terms, 
for  which  their  masters  have  indented,  have  sometimes,  presently 
after  their  muster  and  receiving  part  or  all  of  their  wages,  departed 
and  gone  where  they  will,  and  have  not  passed  the  sea  with  their 
captains,  and  some  passed  the  sea,  and  long  within  their  terms  de- 
parted from  their  captains  and  the  king's  service,  without  apparent 
license  to  them  granted  by  their  captains,  to  the  great  damage,  Src.  it 
is  enacted,  that  every  man  so{k)  mustering  and  receiving  the  king's 
wages,  which  departeth  from  his  captain  within  his  term,  in 
any  manner  aforesaid,  (except  notorious  sickness  by  the  visi-  [  672  ] 
tation  of  God  sufiers  him  not  to  go,  and  which  he  shall  cer- 
tify presently  to  his  captain,  and  repay  his  money,  so  that  he  may 
provide  him  for  another  soldier  in  his  place)  he  shall  be  punished  as 
a  felon,  and  the  justices  of  the  peace  shall  have  power  to  hear  and 
determine  the  same:  and  that  no  soldier,  man  of  arms  or  archer  so 
mustered  of  record,  and  going  with  his  captain  beyond  the  sea  shall 
return  into  England  within  the  term  for  which  his  captain  hath  re- 
tained him,  nor  leave  his  captain  there  in  the  king's  service,  and  in 
adventure  of  the  war,  except  he  hath  reasonable  cause  by  him  shewed 
to  his  captain,  and  by  him  to  the  chief  in  the  country  having  royal 
power,  and  thereupon  shall  have  a  license  of  the  said  captain  wit- 
nessed under  his  seal,  and  shewing  the  cause  of  his  license;  and  if 
any  that  doth  muster  of  record  come  without  letters  testimonial  of  his 
captain  within  his  term  on  this  side  the  sea,  the  mayors,  <§'c.  shall 
arrest  them,  and  detain  them  until  it  be  inquired  of,  and  if  it  be  found 
by  inquiry  before  the  justice  of  peace,  and  proved,  that  they  have 
mustered  of  record  and  departed  from  their  captains  without  license, 
as  aforesaid,  they  shall  be  punished  as  felons."  But  it  took  not  away 
elergy. 

By  this  act  it  appears,  that  the  method  of  those  times  was,  that  as 
well  the  soldiers  as  the  captains  were  under  a  contract  to  serve  in  the 
war,  some  for  longer  time,  some  for  shorter,  and  sometimes  the  sub- 
ordinate soldiers  contracted  with  the  king,  but  most  commonly  the 
captain  contracted  with  the  king  to  serve  him  with  such  a  number 
of  men  raised  by  himself  for  such  a  time,  as  half  a  year  or  the  like, 
and  the  captain  made  his  contract  with  his  soldiers  (therefore 
called  his  retinue,)  and  the  captain  received  the  pay  for  himself  and 
them. 

And  this  method  continued  until  7  H.  7.  and  for  a  long  time  after, 
as  appears  by  the  whole  preamble  and  body  of  the  statute  of  7  H.  7. 
cap.  1. 

(k)  This  word  [so]  restrains  the  statute  to  soldiers  retain'd  in  tlic  manner  mentioned 
in  the  act,  which  method  of  retainer  being  now  disused,  this  statute  is  consequently  be- 
come of  little  force. 


673  HISTORIA  PLACITORUM  CORONA. 

By  that  statute  it  is  enacted,  "  That  every  captain  and  petit  cap- 
tain having  under  them  retinue  of  any  soldier  or  soldiers  at  the 
king's  wages  shall,  under  pains  in  the  same  act  limited,  pay  to  their 
retinue  of  soldiers  their  wages  rateably,  as  it  is  allowed  by  the  king 
or  the  treasurer  of  his  wars,  and  that  within  six  days  next  after  ihey 
have  received  it;  and  if  any  soldier,  being  no  captain,  immediately 
retained  with  the  king,  which  hereafter  shall  be  in  wages  and  re- 
tained, or  takes  any  -prest  to  serve  the  king  upon  the  sea  or  upon  the 
land  beyond  the  sea,  departs  out  of  the  king's  service  without  license 
of  his  captain,  that  such  departing  be  felony  without  the  privilege  of 
clergy;  and  the  justices  in  every  shire,  where  such  oifender  is  taken, 
shall  hear  and  determine  the  offense,  as  if  done  in  the  same  connty; 
and  their  departure  and  retainer,  if  traversed,  shall  be  tried  in  the 
same  county  where  taken."  But  this  act  extended  not  to  soldiers 
impressed  to  serve  in  England. 

By  this  statute  it  appears,  that  the  retainer  of  the  captain  was  by 
contract  with  the  king,  and  he  by  the  same  contract  was  to  provide 
the  soldiers,  which  were  to  be  at  the  king's  pay.  This  is  continued 
also  till  3  H.  8.  as  appears  by  the  preamble  and  body  of  the  act  of 
3  H.  S.  cap.  5. 

By  that  act  of  3  H.  8.  cap.  5.  The  same  punishment  is  enacted 
upon  soldiers  departing  without  license,  only  here  it  is  without  license 
of  the  king's  lieutenant. 

By  the  statute  of  7  H.  7.  It  is  receiving  wages  or  prest  to  serve 
the  king  upon  or  beyond  the  sea;  here  it  is  to  serve  the  king  upon 
the  sea,  or  upon  the  land,  or  beyond  the  sea,  which  is  larger  than 
7  H.  7.  for  it  extends  to  land  service,  and  the  punishment  is  limited 
to  the  justices  of  the  peace  of  the  counties  where  taken. 

Proviso,  that  it  extend  not  to  captains  or  soldiers  retained  to  serve 
in  Calais,  S,'C.  Berwick  or  fVales. 

It  is  resolved  6  Co.  Rep.  27.  a.  in  the  case  of  soldiers,  that  both 
these  statutes  have  continuance,  and  tiie  word  {king)  extends  to  the 
successors  of  those  kings, (m)  and  altho  by  the  statute  of 
{]  G74  ]  1  ^.  6.  and  1  Mar.  all  new  felonies  made  since  the  first  day 
of  the  reign  of  //.  8.  that  were  not  felonies  before,  are  re- 
pealed, yet  inasmuch  as  the  statute  of  3  H.  8.  enacts  no  new  felony, 
but  what  was  felony  by  7  H.  7.  cap.  1.  Iho  it  vary  as  to  the  person, 
that  is  to  grant  the  license,  and  the  persons  that  are  to  try  it,(*)  yet 
it  was  in  truth  no  new  felony,  and  therefore  it  is  held  the  statute  of 
3  //.  8.  was  not  repealed  by  1  Mar.  or  1  E.  6. 

But  it  seems  to  me  to  be  repealed  by  1  E.  6.  and  1  Mar.  for  to 
depart  without  license  of  the  captain,  and  to  depart  without  license 
of  the  king's  lieutenant,  are  several  offenses,  for  suppose  he  had  the 
lieutenant's  license  and  not  the  captain's,  it  is  not  excuse  enough 
within  7  H.  7.  and  if  he  had  the  captain's  license  and  not  the  lieu- 
tenant's, it  excuselh  not  within  the  statute  of  3  H.  8.  But  then 
quaere,  whether  the  exception  for  clergy  of  men  in  orders,  or  of  sol- 

(m)   Vide  anlea,  pag.  100. 

(*)  The  persons  impower'd  to  try  it  are  the  same  by  both  statutes.         . 


HISTORIA  PLACITORUM  CORONiE.  674 

diers  in   Calais,  Berwick,  and   Wales,  extends   to   the  statute   of 
7  H.  7.  cap.  1. 

If  this  variance  by  the  statute  of  3  H.  8.  be  a  repeal  of  the  statute 
of  7  H.  7.  then  they  are  both  repealed,  that  of  7  H.  7.  by  3  H.  8.  and 
that  of  3  H.  8.  by  1  E.  6.  and  1  Mar. 

The  statute  of  2  8,-  3  E.  6.  cap.  2.  recites,  "  That  whereas  divers 
of  the  king's  subjects,  according  to  their  bounden  duties,  have 
appointed  and  sent  into  the  parts  beyond  the  seas  and  into  Scofhaid 
many  able  persons  and  soldiers  with  horses  and  harness  meet  to 
serve  the  king  in  his  wars  to  their  great  charges  and  costs,  yet  some 
of  the  soldiers  so  sent  have,  contrary  to  their  bounden  duty,  sold  or 
converted  the  said  horses  or  harness,  whereby  the  king  hath  been 
destitute  of  their  service,  and  the  owners  who  sent  them  have  been 
deceived  of  their  horses  and  harness,  and  less  able  to  refurnish  other 
like  soldiers  with  horses  and  harness  at  such  time  as  they  shall  be 
commanded  by  the  King." 

It  is  enacted,  "  That  if  any  soldier  hereafter  serving  the  king  in  his 
wars  in  any  of  his  dominions,  or  on  the  seas,  or  beyond  the  seas, 
shall  hereafter  purloin,  Si-c.  such  horses  or  arms,  he  shall  be  commit- 
ted by  the  lieutenant,  S,'c.  upon  due  proof  or  testimony,  till 
satisfaction,  S,'c.  And  if  any  soldiers  serving,  as  is  aforesaid,  [  675  ] 
depart  without  license  of  his  lieutenant  or  other  above- 
named  with  booty  or  otherwise,  being  in  the  enemies  country,  or 
elsewhere  in  the  king's  service,  or  out  of  any  garrison,  where  he  or 
they  be  appointed  to  serve,  that  then  every  such  soldier  so  departing 
without  license,  shall  be  taken  and  judged  as  a  felon  without  benefit 
of  clergy  or  sanctuary;  and  the  justices  of  every  shire,  where  he  is 
taken,  shall  have  power  to  hear  and  determine  the  offense,  as  if  com- 
mitted in  the  same  county. 

"Provisions  against  captains  short  pay,4'c.  Provided  not  to  extend 
to  detaining  of  wages  for  victuals,  harness,  weapons,  or  for  Siuy prest 
money  provided  and  delivered  to  such  soldier." 

Nota,  This  act,  tho  it  vary  from  the  preamble  of  the  other  acts  of 
7  H.  7.  and  3  H.  8.  and  recites,  that  the  king's  subjects  according  to 
their  bounden  duty  had  sent  men  and  soldiers,  doth  not  necessarily 
infer  a  compulsive  power  upon  the  persons  so  to  send,  or  so  to  go; 
1.  Unless  they  were  bound  by  tenure  to  attend  in  person  or  send; 
such  were  tenants  by  knights  service. (n)  2.  Unless  obliged  by  the 
statute  of  11  H.l.  cap.  18.  or  19  //^  7.  cap.  1.  as  having  offices,  pen- 
sions, or  lands  given  by  the  king,  who  by  these  statutes  were  bound 
to  follow  the  king  in  his  wars,  but  at  the  king's  wages,  by  those 
statutes  which  were  held  perpetual.  3.  Or  unless  they  had  con- 
tracted with  the  king  to  find  him  soldiers,  for  this  course  was  not 
wholly  out  of  use,  and  the  preamble  seems  to  import  as  much,  for 
they  sent  their  soldiers,  and  when  they  thus  departed  with  their  arms 
were  bound  to  refurnish  others. 

And  tho  there  be  mention  oi  prest  money  in  this  act;  yet  in  truth 

(n)  See  Co.  Lit.  p.  76.  a.  §  103. 


675  HISTORIA  PLACITORUM  CORONA. 

it  was  imprest  money,  or  the  earnest  of  the  contract  between  the 
king  by  the  captain  and  the  soldiers,  and  not  as  is  now  used. 

But  yet  upon  this  act  two  things  are  observable.     1.  That  this  act 
did  not  nnake  the  departure  of  any  soldier  to  be  felony, 
[  676  3  ""If^ss  he  were  actually  in  the  king's  service  in  his  wars. 
6  Co.  Rep.  27.  a.  case  of  soldiers. 

2,  Tho  this  felony  was  in  substance  the  same,  that  was  enacted 
by  7  H.  7.  yet  the  general  clause  of  the  act  of  1  Mar.  cap.  1.  re- 
pealed it. 

And  this  is  accordingly  so  recited  by  the  statute  of  4  ^  5  P.  Sr  M. 
cap.  3.  which  doth  recite  it  to  be  repealed,  and  therefore  by  an  ex- 
press enacting  clause  renews  that  clause  of  the  statute  of  2  <§•  3  E.  6. 
that  makes  such  departure  felony. 

By  the  statute  of  5  Eliz.  cap.  5.  It  is  recited,  "  That  it  hath  been 
doubted,  whether  the  statute  of  IS  H.  6.  cap.  19.  did  or  ought  to 
extend  to  mariners  and  gunners  serving  on  the  seas  taking  wages  of 
the  king  or  queen.  It  is  expressed,  ordained,  and  enacted  and 
declared,  that  the  said  statute  in  all  pains,  forfeitures  and  other 
things  did  and  doth,  and  hereafter  shall  extend  as  well  to  all  and 
every  mariner  and  gunner  having  taken,  or  that  shall  hereafter  take 
prest  or  wages  to  serve  the  queen,  her  heirs  or  successors,  to  all 
intents  and  purposes,  as  the  same  did  or  doth  to  any  soldier;  any 
diversity  of  opinion,  doubt,  or  matter  to  the  contrary  notwith- 
standing."    But  this  takes  not  away  the  benefit  of  clergy. 

In  Co.  Rep.  27.  a.  The  case  of  soldiers.  The  case  was,  that 
divers  soldiers  after  they  were  prest,  and  going  towards  Ireland  to 
serve  against  the  rebels  there,  and  before  they  had  served  in  the 
war,  did  depart  and  esloigne  themselves;  hereupon  it  was  resolved 
by  all  the  judges  of  England,  43  Eliz.  upon  a  reference  to  them 
made,  as  it  seems,  1.  That  this  case  was  not  within  the  statute  of 
18  H.  6.  but  that  act  is  now  of  little  use,  because  that  act  refers  to 
the  antient  manner  of  retaining  soldiers,  which  was  usual  between 
the  king  and  great  men,  to  serve  the  king  with  such  a  number  of 
men  for  a  certain  time.  2.  That  the  statute  of  2  <§•  3  E.  6.  cap.  2. 
revived  by  4  8r  5  P.  fy  M.  extended  not  to  this  case,  for  that  sta- 
tute extended  to  the  departure  of  a  soldier  after  he  had  been  in 
actual  service  in  the  war.  3.  That  the  statutes  of  7  H.  7.  cap.  1. 
and  3  //.  8.  cap.  5.  which  in  substance  are  both  of  one 
[  677  ]  effect,  are  perpetual  laws,  and  the  word  king  extends  to  his 
successors,  and  upon  those  two  acts  divers  soldiers  were 
attaint  and  executed. 

The  reason  thereof  cannot  be  grounded  upon  any  supposition, 
that  the  course  of  military  retainers  was  altered  in  7  H.  7.  from 
what  it  was  in  the  time  of  //.  6.  for  there  arc  very  many  indentures 
of  retainers  of  record  according  to  the  antient  form  long  after  that 
time,  and  indeed  the  statutes  of  7  H.  7.  and  3  H.  8.  do  import  as 
much,  as  will  easily  appear  to  an  attentive  reader  of  them:  But  that 
which  seems  to  extend  the  acts  of  7  //.  7.  and  3  H.  8.  to  this  case, 
are  the  words  or  take  any  prest,  to  serve  the  king;  which  words 


HISTORIA  PLACITORUM  CORONiE.  677 

are  in  these  statutes  and  in  that  of  5  EHz.  cap.  5,  which  are  wanting 
both  ill  the  statute  of  18  //.  6.  cap.  19.  and  2  8^-  3  E.  6.  cap.  2.  for 
that  makes  them  subject  to  the  penalty  for  departing  without  Hcense, 
as  well  as  if  they  had  received  wages,  or  had  been  mustered,  or  been 
in  actual  service  in  the  wars. 

All  the  difficulty  rests  in  the  word  pre.st,  viz.  whether  it  be  to  be 
intended  passively  from  premo  pressi,  as  it  is  commonly  used  at  this 
day,  and  is  so  exprest  in  the  case  of  soldiers,  ./?/??'e5  ceo  quih  fueront 
prest :  Or  whether  to  be  taken  actively,  as  it  is  exprest  in  the  statutes 
of  1  H.  1.  3  H.  8,  and  5  Eliz.  having  taken  prest  to  serve,  &ic,  prx- 
stitium,  or  the  earnest  of  their  contract.(o) 

All  do  agree,  that  if  a  man  do  voluntarily  receive  or  take  py^est  to 
serve  as  a  soldier,  mariner,  or  gunner,  either  upon  or  beyond  the  seas, 
he  is  bound  thereby,  and  if  he  depart  without  license,  it  is 
felony  within  the  statute  of  7  H.  7.  cap.  1.  3  H.  8.  cap.  5.  [678] 
and  5  Eliz.  cap.  5.  for  the  words  of  the  statutes  are  express 
in  it;  only  in  the  case  of  a  soldier  it  is  without  benefit  of  clergy,  but 
of  a  mariner  or  gunner  it  is  within  benefit  of  clergy,  because  the 
statute  of  18  H.  6.  cap.  19.  doth  not  exclude  clergy,  and  the  statute 
of  5  Eliz.  extends  only  the  statute  of  18  H.  6.  to  mariners  and  gun- 
ners, and  mentions  nothing  of  the  statute  of  7  ^  7.  or  3  H.  8.  which 
exclude  clergy.  But  of  the  business  of  clergy  hereafter  in  this 
chapter. 

But  on  the  other  side,  the  compulsion  of  men  to  go  beyond  or  upon 
the  sea,  or  otherwise  of  imprisoning  of  them,  or  compelling  men  to 
take  prest  money,  or  otherwise  to  imprison  them  hath  been,  I  confess, 
a  practice  long  in  use;  how  far  it  is  justifiable  or  not  the  books  that 
have  treated  of  it  are  to  be  consulted,  nde  the  argument  of  Calvin's 
case,  7  Co.  Rep.  7.  b.  He  that  reads  the  comment  of  my  lord  Coke  upon 
Confirmatio  Cartar,  cap.  5.  and  his  observations  and  conclusions 
there  upon  the  statutes  of  1  E.  3.  cap.  5  ^^  T.(p)  18  E.  3.  cap.  7.{g) 
25  E.  3.  cap.  8.{r)  4  //.  4.  cap.  \3.{s)  may  reasonably  think  he  varied 

(o)  Whatever  doubts  may  formerly  have  been  about  tlie  meaning  of  the  word  prest, 
yet  it  seems  now  to  be  fixt  to  tlie  latter  sense  by  5  ^  6  W.  ^  M.  cap.  15.  for  it  is  there 
enacted,  "That  no  person,  that  shall  be  listed  for  the  land  service,  should  for  the  future 
be  esteemed  a  listed  soldier,  or  be  subject  to  the  penalties  of  this  act,  or  any  other 
penalty  for  his  behaviour  as  a  soldier,  unless  before  his  being  listed  or  inserted  in  any 
muster-roll  he  shall  have  been  brouglit  before  a  justice  of  peace,  (not  being  an  officer  in 
the  army)  or  chief  magistrate  of  some  city,  or  high  constable  of  the  hundred  or  division 
where  the  party  shall  be  listed,  and  before  such  justice,  ^c.  shall  declare  his  free  con- 
sent to  be  listed  as  a  soldier."  Altho  the  former  clause  of  this  statute  for  reviving  the 
punishment  of  mutiny  or  desertion  be  limited  to  the  time  mentiond  in  the  act,  yet  this 
clause  coming  after  that  limitation,  and  being  general  not  only  in  relation  to  the  penal- 
ties of  this  act,  but  of  any  otiier  act,  seems  to  be  perpetual. 

{p)  This  statute  provides,  that  no  man  shall  be  charged  to  arm  himself  otherwise 
than  was  formerly  wont,  and  that  no  man  be  compeld  to  go  out  of  his  shire,  but  where 
necessity  requireth,  and  sudden  coming  of  strange  enemies  into  the  realm. 

{q)  This  statute  ordains,  that  men  of  arms,  ^c.  chosen  to  go  in  the  king's  service  out 
of  England,  shall  be  at  the  king's  wages,  till  their  coming  again. 

(r)  This  statute  enacts,  that  no  man  shall  be  constraind  to  find  men  of  arms,  other 
than  those  who  hold  by  such  service,  except  it  be  by  common  assent  in  parliament. 

(«)  The  design  of  this  statute  is  chiefly  to  confirm  the  three  acts  above  mentiond. 


678  HISTORIA  PLACITORUM  CORONA. 

his  opinion. (/)     And  he,  that  looks  upon  the  acts  enabling  pressing 

of  soldiers  and  mariners  for  foreign  service  upon  or  beyond  the  sea, 

namely  17  Car.  1.  cup.  12,  cap.  25.  cap.  26.  may  think  that 

r  679  1  those  times  made  some  doubt  of  \i.{u)     But  of  this  matter 

I  deliver  no   opinion. (a*)     Howsoever,  to  make  a  felony 

within  those  acts  of  7  H.  7.  cap.  1.   3  H.  8.  cap.  5.  5  Eliz.  cap.  5.  it 

must  be  laid  in  the  indictment  and  proved  upon  evidence.     1.  That 

either  they  received  wages,  or  took  prest  to  serve  the  king  upon  sea 

or  land.     2.  That  he,  that  thus  imprested  them,  was  commissioned 

by  the  king  so  to  imprest  them. 

Touching  clergy  in  these  offenses. 

1.  He  that  is  convict  upon  the  statute  of  \S  H.  6.  cap.  19.  shall 
have  his  clergy.  Co.  P.  C.  cap.  2Q. 

2.  Consequently  a  mariner  or  gunner,  that  hath  taken  wages  or 
prest,  shall  have  his  clergy,  for  the  statute  of  5  Eliz.  cap.  5.  extends 
only  the  pains  and  penalties  of  the  statute  of  \Q  H.  6.  to  this  case, 
and  by  that  statute  of  IS  H.  6.  clergy  was  not  taken  away. 

3.  That  a  departing  contrary  to  the  statute  of  7  H.  1.  or  3  H.  8. 
is  by  those  statutes  exempted  from  clergy,  only  the  statute  of  3  H.  8. 
cap.  5.  allows  men  in  orders  the  benefit  of  clergy. 

4.  The  statute  of  2  <§'  3  E.  6.  takes  away  clergy  from  those,  that 
depart  without  license  after  they  have  served  the  king  in  his  wars. 

5.  By  the  statute  of  1  E.  6.  cap.  12.  All  persons  convict  of  any 
felony  not  excepted  in  that  act,  whereof  this  is  none,  shall  have  their 
clergy,  as  he  might  have  had  before  24  Jlpril,  1  H.  8.  and  therefore 
an  offender  against  7  H.  7.  cap.  1.  is  ousted  of  his  clergy,  because 
ousted  thereof  by  7  H.  7.  cap.  1.  only  if  they  be  in  orders,  they  have 
privilege  of  clergy  by  the  statute  of  3  H.  8.  cap.  5. 

6.  But  if  he  be  indicted  upon  the  statute  of  3  H.  8.  cap.  5. 

r  680  ]  qusere,  whether  he  shall  not  have  his  clergy,  for  tho  the  felony 

in  substance  be  the  same,  yet  this  statute  makes  it  felony  to 

depart  without  the  license  of  the  king's  lieutenant ;  but  the  statute 

(Jt)  In  Calmn's  case  he  was  of  opinion,  that  the  subject  is  bound  to  serve  the  king  in 
his  wars  both  within  and  without  the  realm;  and  in  his  comment  upon  conjirmatio  car- 
tar,  cap.  5.  2  Iiistit.  528.  he  says,  that  the  statutes  above  mentiond,  (which  provide,  that 
none  shall  be  compeld  to  go  to  the  king's  war  out  of  his  shire,  except  in  case  of  necessity, 
nor  shall  be  conslraind  to  find  men  of  arms,  except  by  consent  of  parliament,)  were  but 
declarations  of  the  anlient  law  of  England.  And  again,  in  his  comment  on  Magna 
Charta,  cap.  29.  2  Insiit.  47.  he  says,  that  the  king  cannot  send  any  subject  against  his 
will  to  serve  him  out  of  the  realm,  not  even  into  Ireland,  for  then  under  pretense  of  ser- 
vice he  might  send  liim  into  banishment. 

(m)  Or  rather  were  clear,  that  it  could  not  be  legally  done  without  a  special  act  of  par- 
liament for  that  purpose;  the  like  may  be  argued  from  some  other  temporary  statutes 
enacted  since  our  author's  time,  for  authorizing  the  pressing  of  soldiers  and  mariners, 
viz.  2^3  Ann.  cap,  19.  3  <^  4  Ann,  cup.  11.  4  Arm.  cap.  10.  5  Ann.  cap.  15.  6  Ann. 
cap.  10.  &c.  &c. 

(x)  But  it  may  be  easily  perceived,  that  the  reason  why  our  author  declines  delivering 
any  opinion  was,  because  he  did  not  concur  with  the  then  prevailing  practice,  a  practice 
which  seems  repugnant  to  the  liberties  of  an  Englishman,  and  irreconcilcable  to  the  es- 
tablishcd  rules  of  law,  viz.  that  a  man  without  any  offense  by  him  committed,  or  any 
law  to  authorize  it,  should  be  hurried  away  like  a  criminal  from  his  friends  and  family, 
and  carried  by  force  into  a  remote  and  dangerous  service. 


HISTORIA  PLACITORUM  CORONA.  680 

of  7  H.  7.  cap.  1.  makes  it  felony  to  depart  without  license  of  the  cap- 
tain, and  therefore  vide  supra,  p.  674.  whether  3  H.  8.  be  not  re- 
pealed by  1  E.  6.  as  a  felony  newly  made  since  the  lirst  day  of  the 
reign  of  H.  8. 

If  a  man  receive  imprest  to  serve  the  king  beyond  the  sea,  and  is 
dehvered  over  to  a  conductor  to  be  brought  to  a  certain  place  at  the 
sea  side,  and  is  in  the  king's  wages,  and  runneth  away  without  license 
of  the  conductor,  all  besides  [^Croke,']  Yelverton  and  Hutton,  agreed 
it  to  be  felony,  and  the  conductor  is  as  to  this  purpose  a  captain  ;  but 
all  agreed,  that  if  the  conductor  at  the  place  delivers  him  over  to  an- 
other conductor,  this  second  conductor  is  not  a  captain  within  the 
statute  ;(y)  but  Yelverton  and  Hutton  held,  that  in  neither  case  it  is 
felony,  unless  the  conductor  be  also  a  captain,  and  so  named  in  the 
indenture  between  the  king  and  him,  which  all  agreed  to  be  the 
safest  way. 

It  was  held,  that  it  could  not  be  tried  before  other  justices,  than 
such  as  are  limited  by  the  act,  because  a  new  felony,  and  limited  to 
be  tried  in  another  manner  than  the  law  directs,  viz,  in  the  county 
where  taken.  M.  3  Car.  Hutt.  Rep.  134.  nine  judges  versus  CrokCf 
Hutton,  and  Yelverton,  vide  Cro.  Car.  71.  the  better  [greater]  opin- 
ion was,  that  it  was  felony  and  may  be  tried  before  justices  of  oyer 
and  terminer  or  gaol  delivery,  as  well  as  of  the  peace. 

But  surely  the  press-masters  or  constables,  that  usually  take  up 
men  for  service,  are  not  captains  within  the  act,  neither  is  the  running 
from  them  felony  within  these  statutes.(2r) 

There  are  no  other  felonies  newly  enacted  in  the  time  of 
queen  Mary,  but  those  that  were  temporary,  as  1  4'  2  P.  <^  [  681  3 
M.  cap.  3.  telling  false  news,  ^'c.  after  a  former  conviction,(*) 
and  1  Mar.  cap.  12.  concerning  riots. 

(y)  The  riesolution  here  did  not  distinguish  between  a  first  and  second  conductor,  but 
between  a  conductor,  who  by  agreement  with  the  captain  had  the  leading  them  quite 
thro  to  the  place  of  rendezvous,  and  one  who  was  hired  to  carry  them  part  of  the  way, 
and  then  deliver  them  to  another  conductor;  a  conductor  of  this  last  sort,  whether  first 
or  second,  it  was  agreed  was  not  a  captain  within  the  statute.     See  Hut.  134. 

(z)  These  several  acts  of  parliament  enacted  for  the  punishment  of  soldiers  running 
away  from  their  captains  are  now  in  a  manner  useless,  by  reason  of  the  frequent  statutes 
for  punishing  mutiny  and  desertion  by  the  martial  law,  a  method  more  concise  and 
effectual ;  which,  however  necessary  it  may  be  in  the  time  of  war,  is  by  many  thought 
not  suitable  to  English  freedom  in  times  of  peace  and  tranquility.  See  the  statutes 
1  W.  Sf  M.  Sess.  1.  cap.  5.  and  6  Geo.  2.  cap.  3.  between  which  years  they  have  been  often 
renevvd,  it  not  having  been  judged  proper  to  make  them  of  long  continuance,  but  rather 
to  renew  them  from  year  to  year. 

(*)  This  offense  was  not  made  felony,  but  was  punishable  by  imprisonment  for  life,  and 
forfeiture  of  goods  and  chattels. 


681  HISTORIA  PLACITORUM  CORONA. 


CHAP.  LXIV. 

CONCERNING    FELONIES    NEWLY    ENACTED    IN   THE    TIMES    OP    QUEEN 
ELIZABETH,  KING  JAMES,  KING  CHARLES  I.  AND  KING  CHARLES  II. 

In  the  time  of  Q.  Elizabeth  there  were  several  acts  for  making  new 
felonies,  and  ihey  be  ranked  into  these  ranks. 

I.  Such  as  were  only  temporary,  or  during  the  queen's  life;  such 
were  the  statutes  of  1  Eliz.  cap.  16.  which  in  some  cases  made  re- 
bellious assemblies  felony.  14  Eliz.  cap.  1.  touching  witholding  the 
queen's  castles  and  other  matters.  23  Eliz.  cap.  2.  touching  seditious 
books,  letters,  prophecies,  calculation  of  the  queen's  nativity,  <§'c. 

II.  Such  as  were  perpetual,  or  otherwise  continued,  but  afterwards 
repealed,  as  1  Eliz.  cap.  10.  and  14  Eliz.  cap.  4.  touching  exporta- 
tion of  leather,  repealed  by  the  statute  of  18  Eliz.  cap.  9.  5  Eliz.  cap. 
16.  concerning  witchcraft,  repealed  by  1  Jac.  1.  cap.  12. 

III.  Such  as  were  perpetual  and  stand  unrepealed,  or 
[682]  were  temporary  at  first,  and  made  perpetual,  and  of  these 
I  shall  here  give  a  brief  account. 

By  the  statute  of  5  Eliz.  cap.  14.  It  is  enacted,  "That  if  any  per- 
son or  persons  upon  his  or  their  own  head  or  imagination,  or  by  false 
conspiracy  or  fraud  with  others,  shall  wittingly,  subtilly  and  falsly 
forge  or  make,  or  subtilly  cause,  or  wittingly  assent  to  be  forged  or 
made  any  false  deed,  charter,  or  writing  sealed,  court-roll,  or  the  will 
of  any  person  in  writing,  to  the  intent,  that  the  state  of  freehold  or 
inheritance  of  any  person  or  persons,  of  in  or  to  any  lands,  tenements 
or  hereditaments,  freehold  or  copyhold,  or  the  right,  title,  or  interest 
of  any  person  or  persons  in  or  to  the  same,  or  any  of  them  shall  or 
may  be  molested,  troubled,  defeated,  recovered  or  charged;  or  shall 
pronounce,  publish,  or  shew  forth  in  evidence  any  such  false  or 
forged  deed,  charter,  writing,  court-roll  or  will  as  true,  knowing  the 
same  to  be  false  and  forged,  as  is  aforesaid,  to  the  intent  above  remem- 
bered, and  shall  thereof  be  convicted,  either  by  action  or  actions,  of 
forger  of  false  deeds  to  be  founded  upon  this  statute,  or  otherwise 
according  to  the  order  and  course  of  the  common  law,  ^-c.  shall  pay 
the  party  grieved  his  double  costs  and  damages,  to  be  set  upon  the 
pillory,  both  his  ears  cut  off,  and  also  his  nostrils  slit  and  seared  with 
an  hot  iron,  be  imprisoned  during  life,  and  forfeit  the  profits  of  his 
lands  during  life.(«) 

"  Or  if  any  person,  as  before,  shall  forge,  or  assent  to  be  forged, 
4*c.  any  charter,  deed,  or  writing,  to  the  intent  that  any  person  may 
have  a  term  of  years  in  any  lands,  not  copyhold,  or  any  annuity  for 
life,  years,  or  in  tail,  or  fee-simple,  or  shall  forge  any  obligation,  bill 

(o)  Upon  this  clause  of  the  statute,  Japhet  Croke,  alias  Sir  Peter  Stranger,  was  con- 
victed, Fasc.  4  Geo.  2.  B.  R.  and  sutfered  the  penalties  of  the  act. 


HISTORIA  PLACITORUM  CORONA.  682 

obligatory,  acquittance,  release,  or  discharge  of  any  debt,  account, 
suit,  demand,  or  other  thing  personal ;  or  shall  pronounce,  ^^c.  ut 
supra,  that  then  he  shall  pay  the  party  grieved  double  costs  and 
damages,  be  set  upon  the  pillory,  and  lose  one  of  his  ears,  ^-c. 

"And  if  any  person  or  persons,  being  hereafter  convict  of 
any  of  the  otfenses  aforesaid  by  any  of  the  ways  above  []  683  ] 
limited,  shall  after  his  or  their  conviction  or  condemna- 
tion eftsoons  commit  or  perpetrate  any  of  the  offenses  aforesaid, 
that  then  every  such  second  offense  shall  be  adjudged  felony;  and 
the  parties  convicted  or  attaint  thereof  according  to  law  shall  suffer 
death,  and  forfeit  their  goods  and  lands,  as  in  case  of  felony, 
without  having  advantage  of  sanctuary  or  clergy;  but  the  wife 
not  to  lose  her  dower,  nor  blood  to  be  corrupted,  nor  heirs  dis- 
herited. 

"  Justices  of  oyer  and  terminer  and  of  assize  to  hear  and  deter- 
mine the  offenses  against  this  act. 

"  Not  to  extend  to  any  attorney  or  lawyer  pleading  a  forged  deed, 
not  being  party  or  privy  to  the  forging,  nor  to  the  exemplification*of 
a  forged  deed,  nor  to  any  judge,  that  shall  cause  the  seal  to  be  set  to 
such  exemplification." 

Upon  this  statute,  so  far  as  it  relates  to  felony,  these  things  con- 
siderable shall  be  set  down  in  order. 

1.  What  is  a  making,  forging,  or  assenting. 

If  j1.  makes  a  deed  of  feofment  to  B.  and  after  makes  a  deed  of 
feofment  to  C.  with  an  ante  date  before  the  other  feofment,  this  was 
a  forging  within  the  statute  1  H.  5.  cap.  3.  and  also  within  this 
statute.    Co.  P.  C.  cap.  75.  27  H.  6.  3.  a. 

But  note,  that  it  is  not  the  bare  antedating  of  a  deed,  that  makes 
a  forgery,  for  then  most  assurances,  especially  bargains  and  sales  for 
recoveries,  leases  for  years  to  enable  a  release  would  be  forgeries; 
but  that  which  makes  it  forgery  in  the  former  case,  is  the  intent  to 
avoid  his  own  feofment;  and  the  words  of  this  statute  are,  to  the 
intent  that  the  estate  of  another  person  should  be  disturbed;  so 
the  intent  is  to  be  joined  in  case  of  forgery. 

Again,  if  ^.  make  a  true  deed  of  feofment  to  B.  of  the  manor  of 
Dale,  and  after  B.  rase  out  D.  and  put  in  S.  whereby  the  feofment 
imports  the  manor  of  Sale ;  or  if  ,M.  grants  a  rent-charge  to  B.  for 
life,  and  after  sealing  and  delivery  P.  rases  the  deed,  and  enlarges 
the  sum  or  estate,  this  is  a  subtle  making  of  a  false  deed 
within  this  statute;  vide  1  Anders.  Rep.  Puckering' s  case,  [  684  1 
Case  151.  p.  100. 

An  assent  after  the  fact  committed,  makes  not  the  party  assenting 
guilty,  or  principal  in  the  forging;  but  it  must  be  a  precedent  or  con- 
comitant assent. 

2.  What  is  a  writing  sealed,  deed,  will,  or  court-rool? 

The  forging  of  a  false  customary  of  a  manor  put  under  seal, 
whereby  the  interest  of  the  lord  is  molested,  is  a  writing  under  seal 
within  this  statute.    Dy.  322.  b.  Taverner^s  case. 
VOL.  I. — 57 


6S4  HISTORIA  PLACITORUM  CORON.^. 

The  inserting  of  a  clause  in  a  will  purporting  a  devise  of  lands 
without  warrant  or  direction  of  the  devisor  is  the  forging  of  a  will 
within  this  statute,  tho  the  whole  will  be  not  forged,  and  altho  done 
in  the  testator's  life  by  the  clerk  that  writes  the  will.  Co.  P.  C.  cap. 
75.  as^ainst  the  report  of  Di/.  288.  a.  Marvin's  case. 

But  nole,  this  was  when  the  testator  was  speechless,  but  if  he  had 
his  understanding,  and  assented  to  it,  or  published  it  afterwards,  it  is 
no  forgery,  tho  at  first  written  without  his  direction. 

Forging  surrenders,  admittances,  court-rolls  of  copyhold  lands  are 
within  this  statute. 

If  the  deed  or  will  forged  purport  only  a  lease  for  years,  whereby 
the  freehold  is  charged,  or  of  a  rent-charge  for  years,  it  is  within  this 
first  branch. 

^^.  makes  a  lease  for  years  to  B.  a  forging  of  an  assignment  of  that 
lease  from  B.  to  C.  is  a  forging  of  a  deed  within  the  second  clause, 
Co.  P.  C.  ubi  supra,  against  the  opinion  in  Noy''s  tiep.  in  Markatn's 
case. (6) 

But  an  assignment  made  here  of  a  term  for  years  of  land  in  Ire- 
land is  said  not  to  be  within  this  statute,  but  punishable  as  a  misde- 
meanor in  common  law.  29  Eliz.  Newman's  case,  Hughes  3  Part, 
N.  221. 

3.  What  is  a  pronouncing  or  publishing,  knowing  the  same  to  be 
forged  ? 

If  ^.  forges  a  deed,  and  B.  tells  C.  that  the  deed  is  forged, 
r  685  ]  and  yet  C.  publisheth  it,  it  was  resolved  to  be  within  the 
statute  in  Ores  ham' s  csLse.  P.  38  Eliz.  Cam.  Stellata.{c) 
But  it  seems  to  me,  tho  such  a  relation  may  be  an  evidence  of 
fact  to  prove  his  knowledge,  yet  it  is  not  concUisive,  tho  perchance 
de  facto  the  deed  be  forged;  for  possibly  there  might  be  circum- 
stances of  fact,  that  might  make  the  person  relating  it,  or  his  relation, 
not  credible ;  so  that  the  knowing  must  upon  the  whole  matter  be 
left  to  the  jury  upon  the  circumstances  of  the  case,  and  therefore  the 
case  of  Gresham  being  in  the  star-chamber,  where  the  lords  are 
judges  of  the  fact  upon  the  evidence,  is  no  authority  in  this  case. 

4.  What  is  a  writing,  bill,  bond,  acquittance  ? 

A  will  in  writing  concerning  goods  only,  is  within  this  clause. (c?) 
The  forging  of  a  statute  staple,  or  recognizance  in  nature  of  a  sta- 
tute staple,  is  within  this  statute,  because  the  party's  hand  and  seal 
are  to  it;  but  not  to  the  forgery  of  a  statute  merchant  or  recogni- 

(b)  Noy,  p.  42. 

(c)  This  is  the  same  with  Mar'kham'' s  case,  and  is  cited  by  lord  Coke  for  this  purpose. 
Co.  P.  C.  p.  170.  in  margine. 

(d)  This  seems  to  be  grounded  on  a  mistake  of  lord  Coke,  who  in  his  comment  on 
tills  statute  supposes  the  word  writing  to  be  inserted  in  the  latter  part  of  tliis  clause, 
after  the  words  any  obligation  or  bill  obligatory;  whereas  it  is  not  so,  for  the  statute 
makes  no  mention  o(  writings,  but  only  with  respect  to  an  interest  in  lands  or  annuities, 
and  consequently  does  not  extend  to  a  will  of  goods  only  ;  and  so  was  the  case  cited  by 
lord  Coke  in  Dyer  302  b.  which  was  of  a  will  of  a  lease  for  years,  and  not  of  personal 
goods  only;  but  this  case  is  expressly  included  in  a  later  statute,  viz. 2  Geo.  2.  cap.  25. 
which  makes  such  a  forgery  felony  without  benefit  of  clergy. 


HISTORIA  PLACITORUM  CORONA.  685 

zance,  because  they  have  not  the  conusor's  seal.    Co.  P.  C.  p.  171. 
15  H.  7.  16.  tf.(e) 

Jl.  writes  and  seals  a  letter  to  B.  and  subscribes  it,  B.  cuts  off  the 
lower  part  of  the  letter  with  the  hand  of ./?.  and  puts  to  it  the  seal  of 
his  letter,  and  over  it  writes  an  acquittance,  this  is  the  forging  an 
acquittance.    Co.  P.  C.  ubi  supra. 

I  come  to  the  point  of  felony,  having  before  stated  what  is  a  first 
offense  within  this  statute. 

There  must  be  a  conviction  of  a  first  offense  before  the  second 
offense  be  committed,  otherwise  the  second  offense  is  not  felony ; 
and  therefore  if  before  conviction  of  forgery,  J2.  commits  a 
first  and  a  second  offense,  the  second  offense  is  not  felony  [  686  ] 
within  this  statute. 

And  by  conviction,  I  conceive,  is  intended  not  barely  a  conviction 
by  verdict,  where  no  judgment  is  given,  but  it  must  be  a  conviction 
by  judgment. 

And  the  indictment  for  a  second  offense  must  recite  the  record  of 
the  first  conviction,  that  it  may  appear  to  be  a  conviction  of  such  a 
forgery  as  is  within  the  statute;  for  if  it  be  not  the  indictment  of 
felony  for  the  second  offense  fails. 

And  upon  the  evidence,  tho  the  record  of  the  first  conviction  ought 
to  be  proved,  yet  the  matter  of  the  first  conviction  shall  never  be 
re-examined,  but  must  stand  for  granted,  and  the  party  is  conckide^ 
touching  the  truth  of  the  matter  of  the  first  conviction  by  the  record 
of  that  conviction. 

If  ./?.  publish  a  false  deed  knowingly,  and  be  convict  upon  this 
statute  for  this  offense,  and  after  such  conviction  forges  a  deed,  this 
is  a  second  offense,  and  felony  within  this  statute,  tho  the  publish- 
ing be  prohibited  by  one  clause,  and  the  forging  by  another,  adjudged 
P.  7.  Jac.  B.  R.  Booth's  case,(/)  Co.  P.  C.p.  172.  for  the  words 
are,  if  he  commit  any  of  the  said  offenses  the  second  time:  and  so, 
if  he  be  convict  of  forgery,  the  publication  of  a  forged  deed  after- 
wards knowingly  is  felony,  or  if  he  be  first  convict  of  the  forgery  of 
a  court-roll,  and  after  that  forges  an  obligation  or  acquittance ;  for 
the  second  offense  in  any  of  the  forgeries  or  publications  is  felony, 
tho  it  be  of  a  different  kind,  if  the  first  or  second  offense  be  within 
the  statute  (^) 

The  hearing  and  determining  of  the  offense  against  this  statute  are 
limited  to  the  justices  of  assize,  or  07/er  and  terminer. 

(e)  According  to  this  case  it  should  be  quite  the  reverse;  for  it  is  there  said,  that  the 
statute  merchant  has  the  seal  of  the  party  which,  the  book  says,  is  not  requisite  in  the 
statute  staple. 

(/)  13  Co.  Rep.  34. 

(g)  But  by  2  Geo.  2.  cap.  25.  the  first  offense  is  made  felony  without  benefit  of  clergy, 
and  extends  to  all  deeds,  wills,  bonds,  writings  obligatory,  bills  of  exchange,  promis- 
sory notes,  indorsements,  or  assignments  of  bills  of  exchange,  or  promissory  notes,  or 
acquittances,  or  receipts  for  money  or  goods,  if  done  with  an  intention  to  defraud  any 
person ;  this  act  was  made  to  continue  for  five  years,  and  to  the  end  of  the  next  sessions 
of  parliament,  and  so  expired  the  15th  oi  May,  1735,  but  was  revived  and  made  perpetual 
by  9  Geo.  2.  ch.  18. 


686  HISTORIA  PLACITORUM  CORONA. 

This  extends  not  to  the  justices  of  peace,  for  tho  in  the  commission 

of  the  peace  tliere  is  a  clause,  nee  non  ad  audiendum  4' 

[  687  1  terminandum,  yet  they  being  commissions   of  a  several 

nature,  they  are  not  comprised  under  the  name  of  justices 

oi  oyer  and  tcrminer.{h) 

But  the  court  of  king's  bench  may  hear  and  determine  these 
offenses,  for  they  are  justices  of  oyer  and  terminer  and  more.  Co. 
P.  C.  cap.  41.  JO.  103. 

The  offenders  as  to  felony  in  this  statute  are  excluded  from  clergy 
and  sanctuary. 

The  statute  of  5  Ellz.  cap.  20.  concerning  Egyptians.  Vide  quse 
supra  super  stat.  1  <^'  2  P.  4'  M. 

By  the  statute  of  S  Eliz.  cap.  3.  "  No  man  shall  bring,  deliver, 
send,  receive,  or  take,  or  procure  to  be  brought,  delivered,  sent,  re- 
ceived, or  taken  into  any  ship  or  bottom  any  manner  of  sheep  alive, 
to  be  carried  or  conveyed  out  of  this  realm,  or  out  of  Wales,  or  out 
of  Ireland,  or  any  of  the  queen's  dominions,  upon  pain  of  forfeiture 
of  all  his  goods,  the  moiety  to  the  queen,  the  other  moiety  to  the 
informer,  imprisonment,  and  loss  of  his  left  hand;  and  the  second 
offense  to  be  felony. 

"  But  no  corruption  of  blood  or  loss  of  dower." 

Justices  oi  oyer  and  terminer,  gaol-delivery,  or  of  the  peace,  have 
power  to  hear  and  determine  offenses. 

The  offender  hath  benefit  of  clergy,  as  well  in  case  of  felony,  as  of 
cutting  off  the  hand.    Co.  P.  C.  cap.  42. 

The  statute  of  14  Eliz.  cap.  5.  concerning  rogues  and  vagabonds, 
is  repeald  by  the  statute  of  35  Eliz.  cap.  7.  and  settled  in  another 
way  by  39  Eliz.  cap.  4.  and  therefore  I  shall  refer  it  thither. 

By  the  statute  of  27  Eliz.  cap.  2.  "  It  shall  not  be  lawful  for 
any  Jesuit,  seminary  priest,  or  other  such  priest,  deacon,  or  other 
religious  or  ecclessiastical  person  whatsoever,  born  within  this  realm, 
or  any  of  the  queen's  dominions,  hereafter  to  be  made,  ordaind  or 
professed  by  any  authority  or  jurisdiction,  derived,  challenged,  or 
pretended  from  the  see  of  Pome,  to  come  into  this  realm  or  any  of 
the  queen's  dominions,  (except  as  in  that  act  is  excepted,)  under  pain 
of  high  treason. 

"And  any  person,  that  after  the  end  of  forty  days  shall 

[688]  wittingly  and  willingly  receive,  comfort,  aid,  or  maintain 

such  Jesuit,  4'C.  being  at  "liberty  and  out  of  hold,  knowing 

him  to  be  a  Jesuit,  seminary  priest,  d^'C. shall  be  adjud'ged  a  felon 

without  benefit  of  clergy." 

By  the  statute  of  31  Eliz.  cap.  4.  "If  any  having  the  charge  or 
custody  of  any  armour,  ordinance,  munition,  powder,  shot,  or  of 
habiliments  of  war  of  the  queen,  her  heirs  or  successors,  or  of  any 
victuals  provided  for  the  victualling  of  any  soldiers,  gunners,  ma- 
riners, or  pioners,  shall  for  lucre,  or  gain,  or  wittingly,  advisedly,  and 
of  purpose  to  hinder  or  impeach  her  majesty's  service,  embezzle, 

(h)  Cro.  Eliz.  87. 


HISTORIA  PLACITORUM  CORONA.  -6S8 

purloin,  or  convey  away  the  same,  to  the  vahie  of  twenty  shiUings 
at  one  or  several  times,  it  shall  be  felony. 

"The  prosecution  to  be  within  a  year  after  the  offense:  no  cor- 
ruption of  blood,  loss  of  dower,  nor  loss  of  lands,  but  during  the  life 
of  the  offender. 

"The  prisoner  allowed  to  make  any  lawful  proof  for  his  discharge. 
Clergy  not  taken  away." 

By  the  statute  of  35  Eliz.  cap.  1.  It  is  enacted,  "That  if  any 
person  above  the  age  of  sixteen  years,  who  shall  obstinately  refuse 
to  repair  to  some  church  or  chapel,  or  usual  place  of  common 
prayer  to  hear  divine  service  established  by  her  majesty's  laws  or 
statutes,  and  shall  forbear  to  do  the  same  by  the  space  of  a  month 
next  after  without  any  lawful  cause,  shall  at  any  time  after  forty 
days  next  after  the  end  of  this  session  of  parliament,  by  printing, 
writing,  words  or  speeches,  advisedly  and  purposely,  go  about  to 
persuade  others  to  impugn  her  majesty's  power  in  causes  eccle- 
siastical, or  persuade  others  to  forbear  coming  to  church  to  hear 
divine  service,  or  receive  the  communion  according  to  law,  or  to  be 
present  at  any  unlawful  conventicle  or  meeting,  under  pretense  of 
exercise  of  religion,  contrary  to  her  majesty's  laws;  or  shall  after 
the  forty  days  willingly  join  in,  or  be  present  at,  such  assemblies  or 
meetings  under  colour  of  exercise  of  religion,  contrary  to  the  laws  of 
this  realm,  then  such  person  being  thereof  lawfully  convicted  shall 
be  committed  to  prison-,  there  to  remain  without  bail  or 
mainprise,  till  he  shall  conform  and  yield  to  come  to  some  f  689  ] 
church  or  chapel,  and  hear  divine  service  according  to  the 
queen's  laws,  and  make  open  submission  and  declaration  of  his  con- 
formity, as  by  the  act  is  prescribed. 

"And  if  such  person  shall  not  within  three  months,  being  required 
by  the  bishop  of  the  diocese  or  justice  of  peace  of  the  county,  where 
he  is  convicted,  come  to  some  parish  church  to  hear  divine  service, 
he  shall  abjure  the  realm,  as  by  that  act  is  appointed. 

"And  if  he  shall  refuse  to  abjure,  or  having  abjured  shall  no  go, 
or  else  shall  return  without  the  queen's  license,  it  is  felony  without 
benefit  of  clergy. 

"  No  loss  of  dower,  corruption  of  blood,  nor  forfeiture  of  lands 
longer  than  the  life  of  the  offender. 

"  Special  punishment  by  forfeiture  of  \Ql.  per  mensem,  for  such  as 
relieve  them,  except  father,  mother,  ^^c. 

"  Not  to  extend  to  women  or  popish  recusants." 

Tho  it  were  formerly  doubted,  yet  upon  great  consideration  by  all 
the  judges  it  hath  been  resolved,  that  this  statute  is  in  force. 

But  to  make  up  the  offense  to  be  felony  there  are  so  many  circum- 
stances required,  that  it  is  difficult  to  have  any  legal  conviction  ac- 
cording to  this  statute. 

1.  The  party  must  be  above  sixteen  years  old.  2.  He  must  obsti- 
nately refuse  to  come  to  church,  which  obstinate  refusal  cannot  be 
without  a  request  or  monition  to  repair  to  church.  3.  He  must  for- 
bear to  come  to  church  for  a  month  after  such  refusal  without  a  rea- 


689  HISTORIA  PLACITORUM  CORONiE. 

sonable  cause  of  absence.  4.  He  must  do  some  of  those  acts  limited 
by  the  statute,  as  to  dissuade  coming  to  church,  <^'C.  or  after  that 
month's  absence  be  at  an  unlawful  conventicle. 

And  all  these  things  must  be  precisely  charged  in  the  indictment 
and  proved  upon  evidence,  or  otherwise  no  such  commitment,  or 
abjuration,  or  felony  can  follow. 

And  therefore,  altho  many  have  been  hastily  convicted  upon  this 

statute  upon  general  indictments  of  not  coming  to  church,  and  being 

at  an  unlawful  conventicle,  yet  never  was  any  convict  before 

[  690  3  me  upon  this  offense,  because  these  circumstances  were  either 

not  laid  in  the  indictment,  or  not  efiectually  proved. 

Besides,  it  is  difficult  to  say,  what  conventicle  upon  pretense  of 
exercise  of  religion  was  in  those  times  contrary  to  the  laws  of  the 
realm,  unless  mass,  or  by  mass-priests,  tho  of  late  time  it  hath  been 
settled  by  special  acts  of  this  parliament,  viz.{i) 

The  reason  why  popish  recusants  are  exempted  out  of  this  act  is, 
because  there  is  provision  touching  them  in  the  next  following,  viz. 

By  the  statute  of  35  Eliz.  cap.  2.  "  If  any  popish  recusant  not 
having  an  estate  in  lands  of  twenty  marks /;e7'  annum,  or  goods  to 
the  value  of  twenty  marks,  (other  \hM\  feme-coverts)  shall  not  repair 
to  his  dwelling-house,  <5'C.  according  to  the  act,  and  present  himself 
and  his  name  to  the  minister  and  church- wardens  of  that  parish;  or 
after  their  coming  shall  go  five  miles  from  their  dwelling,  and  being 
therefore  taken  shall  not  within  three  months  after  taking  come  to 
church  and  make  their  confession  of  conformity,  as  in  that  act  is 
exprest,  being  thereunto  required  by  a  justice  of  peace,  or  by  the 
minister  or  curate  of  the  parish,  then  such  recusant  being  thereunto 
required  by  two  justices  or  coroner  of  the  county  shall  abjure  the 
realm  for  ever;  and  if  he  refuse  to  abjure,  or  having  abjured  refnse 
to  go  out  of  the  realm,  or  being  gone  shall  return  without  license,  it 
shall  be  felony  without  clergy." 

By  the  statute  of  39  Eliz.  cap.  4.  All  former  statutes  against  rogues 
and  vagabonds  are  repeald,  and  among  other  things  it  is  enacted, 
"That  if  any  rogues  shall  appear  dangerous,  or  will  not  be  reformed 
from  their  roguish  life  by  the  provisions  of  that  act,  it  shall  be  law- 
ful for  two  justices  of  the  limit,  whereof  one  of  the  Quorum,  to  com- 
mit him  to  the  house  of  correction  till  the  next  quarter  sessions,  and 
then  the  major  part  of  the  justices  may  banish  him  out  of 
r  691  ]  the  realm  and  dominions  thereof,  to  such  place  as  shall  be 
assigned  by  six  of  the  privy  council,  whereof  the  lord  chan- 
cellor or  treasurer  to  be  one,  or  condemn  him  to  the  gallies  of  this 
realm;  and  if  any  such  rogue  so  banished  shall  retiun  again  without 
lawful  warrant,  it  shall  be  felony,  to  be  heard  and  determined  in  that 
county  of  England  or  Wales  where  he  shall  be  apprehended. 

,(i)  There  is  a  blank  here  in  the  M.S.  but  the  acts  here  meant  are  16  Car.  2.  cap.  4. 
and  22  Car.  2.  cap.  1,  by  which  statute  every  assembly  for  religious  worsliip  of  five  or 
more  besides  the  family,  in  other  manner  than  is  allowed  by  the  liturgy  of  the  church  of 
England,  is  declared  to  be  a  conventicle  contrary  to  law ;  but  these  acts  are  now  of  no 
force  against  protestant  dissenters,  by  reason  of  the  toleratioa  act.     1  W.  Sj  M.  cap.  18. 


HISTORIA  PLACITORUM  CORON.E.  691 

"  But  in  this  case  the  offender  hath  clergy." 

Tliis  act  is  continued  by  the  statute  of  1  Jac.  cap.  25.  3  Car.  1. 
cap.  4.  and  16  Car.  1.  cap.  4. 

By  the  statute  of  1  Jac.  cap.  7.  It  is  further  added,  "  That  such 
dangerous  and  incorrigible  rogues  shall  by  judgment  of  the  same 
justices  in  the  sessions  be  branded  in  the  shoulder  with  the  letter  B. 
and  be  sent  to  the  place  of  his  last  dwelling;  and  if  it  cannot  be 
known,  then  to  the  place  of  his  birth;  and  if  such  rogue  be  after 
found  offending  in  begging  or  wandering  contrary  to  this  statute,  it 
shall  be  felony  without  clergy,  and  tried  in  the  county  where  he  shall 
be  taken." 

This  act  is  likewise  continued  by  3  Car.  1.  and  16  Car.  1.  cap.  4. 

This  act  doth  not  take  away  the  punishment  by  the  statute  of 
39  Eliz.  cap.  4.  but  gives  election  to  the  justices  in  the  sessions  to 
inflict  either. 

By  the  statute  of  39  Eliz.  cap.  17.  "  1.  Idle  and  wandering  soldiers 
or  mariners,  or  idle  persons  wandering  as  soldiers  or  mariners.  2.  Idle 
or  wandering  soldiers  coming  from  sea,  not  having  a  testimonial  under 
the  hand  of  a  justice  of  peace,  setting  down  the  time  and  place  of  his 
landing,  place  of  his  dwelling  and  birth,  and  limiting  a  time  for  his 
passage  thither.  3.  Or  exceeding  the  time  limited  by  his  testimonial 
fourteen  days,  unless  he  falls  sick,  if  he  be  in  truth  a  soldier  or  mari- 
ner. 4.  Every  wandering  soldier  or  mariner,  or  every  person  wan- 
dering as  a  soldier  or  mariner  counterfeiting  his  testimonial,  or  having 
the  same  forged  testimonial  about  him,  knowing  the  same  to  be 
forged,  is  a  felon  without  benefit  of  clergy." 

This  offense  may  be  heard  and  determined  before  justices 
of  assize,  gaol-delivery,  or  of  the  peace,  having  power  to  ["692"} 
hear  and  determine  felony.     No  corruption  of  blood. 

If  a  freeholder  will  take  him  into  service  for  a  year,  and  he  becomes 
bound  by  recognizance,  ut  per  statute,  no  farther  proceeding  to  be 
against  him;  but  if  within  the  year  he  depart  without  license,  it  is 
felony  without  benefit  of  clergy. 

Continued  by  3  Car.  1.  cap.  4.  and  16  Car.  1.  cap.  4. 

And  thus  far  for  felonies  enacted  in  the  time  of  queen  EUzahefh. 

In  the  time  of  king  James  these  ensuing  felonies  were  de  novo 
enacted. 

By  the  statute  of  1  Jac.  cap.  11.  "  If  any  person  within  his  ma- 
jesty's dominions  of  England  and  Wales,  being  married,  do  at  any 
time  after  marry  any  person  or  persons,  the  former  husband  or  wife 
being  alive,  every  such  offense  shall  be  felony,  and  the  party  offend- 
ing shall  receive  such  proceeding,  trial  and  execution  in  such  county 
where  he  or  she  is  taken." 

This  act  hath  five  exceptions.  1.  It  shall  not  extend  to  such  per- 
sons, whose  husband  or  wife  shall  be  continually  remaining  beyond 
the  seas,  for  the  space  of  seven  years  together.  2.  Or  whose  husband 
or  wife  shall  absent  him  or  herself  in  any  place  within  the  king's 
dominions,  the  one  not  knowing  the  other  to  be  living  within  that  time. 
3.  Nor  to  any  person  divorced  by  any  sentence  had  or  to  be  had  in 


692  HISTORIA  PLACITORUM  CORONA. 

the  ecclesiastical  court.  4.  Nor  to  any  person  whose  marriage  hath 
been  or  shall  be  declared  void  by  sentence  in  the  ecclesiastical  court. 
5.  Nor  to  any  person  or  persons  for  or  by  reason  of  any  marriage 
had  or  to  be  had  within  llie  age  of  consent. 

This  felony  not  to  make  corruption  of  blood,  or  loss  of  dower,  or 
disherison  of  the  heir. 

1.  Observables  upon  the  body  of  the  act. 

Altho  the  second  marriage  be  simply  void,  yet  the  parliament 
thought  it  just  to  make  it  felony. 

^1.  takes  ^.  to  husband  in  England,  and  after  takes  C.  to  husband 
in  Ireland,  she  is  not  indictable  in  England,  because  the  offense  was 
committed  out  of  this  kingdom.     But  if  Jl.  marries  a  hus- 
\_  693  3  band  in  Ireland,  and  comes  into  England,  and  marries  a 
second  husband,  here  it  is  felony.     The  former  case  was  ac- 
cordingly ruled  at  Newgate  sessions. (A-) 

A.  takes  B.  to  husband  in  Holland,  and  then  in  Holland  takes  C. 
to  husband,  living  B.  and  then  B.  dies,  and  living  C  sh(?  marries  D. 
this  is  not  marrying  a  second  husband,  the  former  being  alive,  for  the 
marriage  to  C.  living  B.  was  simply  void,  and  so  he  was  not  her 
husband;  but  if  J5.  had  been  living,  this  had  been  felony  to  marry 
D.  in  England:  ruled  at  Newgate  sessions  about  1648.  the  lady 
Madison^s  case. 

The  first  and  true  wife  is  not  to  be  allowed  as  a  witness  against 
the  husband;  but  I  think  it  clear  the  second  wife  may  be  admitted 
to  prove  the  second  marriage;  for  she  is  not  his  wife,  contrary  to  a 
sudden  opinion  delivered  in  July,  1664.  at  the  assizes  in  Surrey,  in' 
Arthur  Armstrong' s  case;  for  she  is  not  so  much  as  his  wife  de 
facto.    Vide  quse  dixi  supra  super  statu t.  3  H.  7.  cap.  2.  p.  661. 

2.  Observables  touching  the  exceptions. 

As  to  the  first,  If  the  husband  or  wife  be  beyond  the  seas  seven 
years,  tho  the  party  in  England  hath  notice  that  he  or  she  is  living, 
yet  it  is  no  felony,  which  appears  by  the  second  exception,  where  the 
party  is  commorant  in  the  king's  dominions,  if  the  party  hath  notice, 
it  is  felony;  notice  there  makes  the  offense,  but  not  when  the  husband 
or  wife  is  beyond  sea;  and  yet  in  the  former  case  as  well  as  the  latter 
the  second  marriage  is  void.    Vide  22  E.  4.  Consultation  5. 

As  to  the  .9eco?zrf  exception :  Suppose  the  first  wife  or  husband  be 
absent  in  New-England  or  Ireland  seven  years,  this  is  beyond  the 
seas,  and  so  within  the  words  of  the  first  exception,  and  yet  within 
the  king's  dominions,  and  so  not  aided  by  the  words  of  the  second 
exception,  unless  without  notice;  it  seems  in  favorem  vitse  the  words 
within  the  king's  dorninions  must  be  intended  within  England^ 
Wales,  or  Scotland,  to  make  both  clauses  consistent;  but  however 
the  isle  of  Wight  is  not  beyond  the  sea  within  the  first  clause,  because 
infra  corpus  comitatus  Southampton:  so  for  Scilly,  Liindy.  Qusere 
oi  Guernsey,  Jersey. :  ..''.;,. 

{k)  1  Sid.  171.  Kel.  79. 


HISTORIA  PLACITORUM  CORONA.  694 

As  to  the  third  exception  :  certainly  the  divorce  intended  is  not  ti 
vinculo  matrimonii,  for  then  without  the  aid  of  any  proviso  either 
may  freely  marry ;  but  it  must  be  intended  of  divorces  a  mensd  <§' 
thoro.  P.  12.  Car.  \,  B,  R.  Porter^s  case,  it  was  doubted,  whether  a 
divorce  causa  saeviliae,  were  such  a  divorce  as  was  within  this  ex- 
ception, because  it  seemed  ratlier  to  be  a  provisional  separation  for 
the  wife's  safety  and  maintenance,  than  a  divorce ;  but  it  was  never 
resolved.    Cro.  Car.  461.(/) 

If  there  be  a  divorce  ii  vinculo,  and  one  of  the  parties  appeals,  the 
this  suspend  the  sentence,  and  possibly  may  repeal  it,  yet  a  marriage 
pending  that  appeal  is  held  to  be  aided  by  this  exception.  Co.  P.  C. 
cap.  21.  p.  89.  But  if  the  sentence  of  divorce  be  repealed,  a  mar- 
riage after  is  not  aided  by  this  exception,  tho  there  was  once  a 
divorce. 

As  to  the  fifth  exception :  If  either  party  be  within  the  age  of 
consent,  the  exception  extends  to  both :  ^.  of  the  age  of  twenty 
years  marries  B.  of  the  age  of  nine  years,  ^^.  marries  a  second  wife, 
this  is  aided  by  the  exception,  as  well  as  if  B.  had  married  a  second 
husband  before  agreement  at  her  age  of  consent  to  the  first  marriage, 
for  either  of  them  may  resilire  before  they  have  both  consented, 
T.  42  Eliz.  B.  R.  Babington's  case,  Co.  P.  C.  cap.  27.  p.  89. 

But  if  a  woman  of  twelve  years  marry  a  man  of  fourteen  years, 
a  second  marriage  by  either  is  felony,  thb  they  are  infants,  because 
as  to  matters  of  this  kind,  especially  the  business  of  marriage,  they 
are  at  this  age  adjudged  of  discretion.  Sed  vide  supra,  cap.  3.  pie- 
nius  de  hdc  materia. 

3.  Observables  touching  the  trial. 

The  trial  to  be  in  the  county  where  the  offender  is  apprehended, 
is  added  cumulative;  for  he  may  be  indicted  where  the  second  mar- 
riage was,  tho  he  be  never  apprehended,  and  so  may  proceed  to  out- 
lawry, as  likewise  it  may  be  done  upon  the  statute  of  7  H.  7.  cap.  1. 
of  soldiers.     Co.  P.  C.  cap.  26.  p.  87. 

By  the  statute  of  1  Jac.  cap.  12.  All  former  acts  against  conjura- 
tion, inchantments,  4*c.  are  repeald,  and  it  is  enacted, 

"  1.  That  if  any  person  shall  use,  practise,  or  exercise 
any  invocation  or  conjuration  of  any  evil  or  wicked  spirit,     f  695  J 

"2.  Or  shall  consult,  covenant  with,  entertain,  employ, 
feed,  or  reward  any  wicked  or  evil  spirit,  to  or  for  any  intent  or 
purpose. 

"  3.  Or  take  up  any  dead  man,  woman,  or  child,  out  of  his  or  their 
grave,  or  any  other  place,  or  the  skin,  bone,  or  any  other  part  of  any 
dead  person,  to  be  employed  in  any  manner  of  witchcraft,  sorcery, 
charm,  or  inchantment. 

"  4.  Or  shall  use,  practise,  or  exercise  any  witchcraft,  sorcery, 
charm,  or  inchantment,  whereby  any  person  shall  be  kild,  destroyed, 
wasted,  consumed,  pined,  or  lamed  in  his  or  her  body,  or  any  part 
thereof. 

(0  Kd.  27, 


695  HISTORIA  PLACITORUM  CORONA. 

"Every  such  person  or  persons,  their  aiders,  abettors,  and  coun- 
sellors, being  thereof  convict  and  attaint,  shall  suffer  death  as  a  felon 
without  clergy. 

"  1.  If  any  person  shall  take  upon  him  by  witchcraft,  inchantment, 
charm,  or  sorcery,  to  tell  where  any  treasure  of  gold  or  silver  may 
be  found  in  the  earth  or  other  secret  places. 

"2.  Or  where  goods  or  things  lost  or  stolen  should  be  found  or  be 
come  at. 

"3.  Or  shall  use  any  sorcery,  to  the  intent  to  provoke  any  person 
to  unlawful  love. 

"4.  Or  whereby  any  cattle  or  goods  of  any  person  shall  be  de- 
stroyed, waisted,  or  impaired. 

"5.  Or  to  hurt  or  destroy  any  person  in  his  or  her  body,  iho  the 
same  be  not  effected  or  done. 

"First  conviction  one  year's  imprisonment  without  bail,  and  once 
a  quarter  to  stand  two  hours  in  the  pillory,  and  confess  his  or  her 
fault. 

"If  after  conviction  he  commit  the  like  offense,  and  be  convict 
and  attaint  of  such  second  offense,  he  shall  suffer  death  as  a  felon 
without  clergy:  but  no  loss  of  dower,  corruption  of  blood,  nor  heir 
disherited." 

By  the  statute  of  1  Jac.  cap.  31.  persons  going  abroad  with  a 

plague-sore,  felony.     But  this  act  is  discontinued,  as  my  lord  Coke 

saith,  Co.  P.  C.  p.  90.  but  3  Car.   1   cap.  4.  hath   revived 

\_  696  ]  or  continued  it  to  the  end  of  the  first  session  of  the  next 

parliament;  and  by  16   Car.  1.  cap.  4.  it  is  continued  till 

repeald. 

But  it  gives  no  forfeiture  of  lands,  goods,  or  chattels. 

By  the  statute  of  3  Jac.  cap.  4.  "If  any  subject  pass  out  of  this 
realm,  to  the  intetit  to  serve  any  foreign  prince,  state,  or  potentate, 
or  shall  pass  over  the  seas,  and  there  shall  voluntarily  serve  any  such 
foreign  prince,  ^'c.  not  having  before  his  or  their  passing  taken  the 
oath  prescribed  in  that  act  before  the  customer,  comptroller  of  the 
port,  haven,  or  creek,  or  their  deputy  or  deputies,  or  being  a  gentle- 
man, or  of  higher  rank,  or  hath  born  office  of  a  captain,  lieutenant, 
or  other  place  in  the  camp  shall  pass,  8j'c.  before  he  hath  taken  the 
oath,  and  given  bond,  8;c.  it  is  felony. 

"  The  trial  shall  be  in  the  county  where  the  offense  is  committed, 
viz.  the  place  of  his  departure,  tho  that  be  but  part  of  the  offense, 
and  there  they  shall  inquire  of  the  rest  of  the  offense  committed 
beyond  sea,  viz.  his  service  there. (w) 

"  The  offender  hath  his  clergy. 

"  No  corruption  of  blood  nor  loss  of  dower." 

By  the  statute  of  21  Jac.  cap.  26.    "All  persons  who  acknow- 
ledge or  procure  to  be  acknowledged  any  fine  or  fines,  recovery  or 
recoveries,  deed  or  deeds  enrolled,  statutes  or  recognizances,  bail  or 
judgment,  in  the  name  of  any  person  or  persons  not  privy  or  con- 
Cm)  Co.  P.  C.  p.  80.  cap.  4. 


HISTORIA  PLACITORUM  CORONA.  696 

senting  to  the  same,  and  being  thereof  lawfully  convicted  or  attaint, 
shall  incur  the  penalties  of  felons  without  benefit  of  clergy. 

"  No  corruption  of  blood  nor  loss  of  dower." 

A  bail  taken  before  a  judge,  is  not  a  bail  within  this  statute 
till  it  be  filed  of  record;  and  if  it  be  not  filed,  the  acknowledging 
thereof  in  another's  name  makes  not  felony,  but  a  misdemeanor 
only.(*) 

The  statute  of  21  Jac.  cap.  27.  for  murdering  bastard  children: 
this  I  shall  reserve  to  the  title  of  evidence,  Part  II.  cap.  39.  quod 
vide  ibidem. 

And  thus  far  of  felonies  in  the  time  of  king  James. 

In  the  time  of  king  Charles  I.  I  find  not  any  any  new  [  697  J 
enacted  felony. 

I  therefore  come  to  the  time  of  king  Charles  II. (t) 

(*)   But  this  is  since  made  felony  by  4  4"  5  TF.  4"  -M"* 

(t)  Here  the  manuscript  breaks  off,  our  author  having-  proceeded  no  farther;  but  to 
render  the  work  more  complete,  it  is  thought  proper  to  subjoin  an  account  of  the  several 
felonies  which  have  been  enacted  since  that  time,  by  which  it  will  appear,  that  latter 
times  have  been  no  less  fruitful  in  multiplying  capital  punishments,  than  former  ones 
were. 


Felonies  enacted  in  the  time  of  King  Charles  II. 

I.  Transporting  wool, 

■  By  13  <Sf  14  Car.  2.  cap.  18.  it  is  made  felony  to  transport  wool  out  of  England, 
Wales,  or  Ireland;  but  hy  1  S(  8  W.  3.  cap.  28,  the  making-  it  felony  is  repeald,  and  it  is 
reduced  to  a  misdemeanor,  which  by  that  and  later  statutes  is  subjected  to  severe 
penalties. 

II.  Covenlry^s  act  concerning  dismembring  or  disfiguring. 

By  22  S(  23  Car.  2.  cap.  1.  if  any  siiall  of  malice  forethought,  and  by  lying  in  wait, 
unlawfully  cut  out  or  disable  the  tongue, 

Put  out  an  eye, 

Slit  the  nose, 

Cut  off  a  nose  or  lip. 

Or  cut  off  or  disable  any  limb  or  member  of  any  other  person,  with  intention  to  maim 
or  disfigure,  they,  their  counsellors,  aiders, and  abetters,  shall  be  guilty  of  felony  without 
benefit  of  clergy. 

Attainder  on  this  statute  shall  not  work  any  corruption  of  blood  or  forfeiture. 

Sir  John  Coventry,  a  member  of  the  house  of  commons,  had  a  little  before  been  as- 
saulted in  the  street,  and  his  nose  slit,  which  gave  occasion  to  the  making  this  act, 
which  from  him  was  called  Coventn/s  act. 

Upon  this  statute.  Coke  and  Woodburne  were  condemned  and  executed  at  Suffolk 
assizes,  8  Geo.  I.  for  slitting  the  nose  of  Mr.  Crispe.     See  State  Tr.  Vol.  \l.  p.  212. 

III.  Maliciously  burning  stacks  of  corn,  or  killing  cattle  in  the  night. 

By  22  4"  23  Car.  2.  cap.  7.  Whoever  shall  in  the  night-time  maliciously,  unlawfully, 
and  willingly,  burn  any  stacks  of  corn,  hay,  or  grain,  barns  or  other  houses,  or  buildings, 
or  kilns. 

Or  shall  in  the   night-time  maliciously,  unlawfully,  and  willingly,  kill   or  destroy 


697  HISTORIA  PLACITORUM  CORONA. 

horses,  sheep,  or  other  cattle,  shall  be  guilty  of  felony ;  but  liberty  is  given  the  offender 
to  chuse  transportation  for  seven  years. 

Attainder  on  this  act  shall  not  work  corruption  of  blood,  loss  of  dower,  or  disherison 
of  the  heir. 

During  the  short  reign  of  king  James  II.  I  do  not  find  any  new 

enacted  felony. 

Felonies  enacted  in  the  time  of  King  William  III. 
I.  Personating  bail. 

By  4  W.  tSf  JVL  caip.  4.  Personating  another  before  those  who  have  authority  by  that 
act  to  take  bail,  so  as  to  make  him  liable  to  the  payment  of  any  sum  of  money  in  that 
suit  or  action,  is  made  felony. 

[  698  ]  II.  Counterfeiting  lottery  tickets. 

By  5  tSf  6  W.  <Sf  M.  mp.  7.  8  Ann.  cap.  4.  12  Ann.  sess.  Leap.  2.  sess.  2.  cap.  9.  5  Geo.  1. 
cap.  3  ^  9.  7  Geo.  1.  cap.  20.  The  forging  or  counterfeiting  the  tickets  in  the  several 
lotteries  appointed  by  the  said  acts, 

Or  standing  orders  or  receipts  given  out  in  pursuance  of  the  said  acts, 

Or  altering  the  number  or  principal  sum  thereof, 

Or  counterfeiting  the  hand  of  any  person  to  such  order, 

Or  the  bringing  any  such  forged  ticket,  SfC.  (knowing  it  to  be  so)  to  the  managers, 
Sfc.  with  intent  to  defraud  his  majesty  or  any  contributor,  is  made  felony  without  benefit 
of  clergy. 

III.  Counterfeiting  the  stamps. 

By  5  ^  6  W.  Sf  M.cap.  21.  9  <^  10  IF.  cap.  25.  8  Ann.  cap.  9.  9  Ann.  cap.  1 1  <^  cap.  23. 
10  Ann.  cap.  19.  12  Ann.  sess.  2.  cap.  9.  5  Geo.  1.  cap.  2.  Forging  any  of  tlie  stamps 
appointed  by  the  said  acts, 

Or  counterfeiting  or  resembling  the  impression  of  the  same  upon  any  vellum,  parch- 
ment,  or  paper. 

Or  uttering,  vending,  or  selling  any  vellum,  S[C,  with  such  counterfeit  impression, 
knowing  the  same  to  be  so. 

Or  using  any  stamps  or  marks  with  intent  to  defraud  the  crown  of  the  stamy  duty,  is 
made  felony  without  benefit  of  clergy. 

IV.  Counterfeiting  the  seal  of  the  Bank,  bank-notes,  S,'c. 

By  7  &  8  TF.  cap.  31.  §  36.  8  &  9  W.  cap.  19.  §  36.  and  11  Geo.  1.  cap.  9.   The  forg. 

ing  the  common  seal  of  the  bank, 
Or  any  bank-bill  or  bank-note, 
Or  erasing  or  altering  any  such  bill  or  note. 
Or  altering  or  erasing  any  indorsement,  or  any  bank-bill  or  note, 
Or  tendering  the  same  in  payment,  knowing  the  same  to  be  forged,  erased,  or  altered 

is  made  felony. 

V.  Counterfeiting  exchequer-bills. 

By  7  &  8  W.  ccrp.  31.  §  78.  9  W.  cap.  2.  §  3.  5  Ann.  cap.  13.  7  Ann.  cap.  7.  9  Ann. 
cap.  7.  11  Geo.  1.  cap.  17.  §  12.     The  counterfeiting  exchequer  bills, 

Or  any  indorsement  thereon, 

Or  tendering  sucli  counterfeit  bills  or  indorsement,  knowing  the  same  to  be  counter, 
feit,  with  intention  to  defraud  his  majesty,  or  any  other  person,  is  felony  without  benefit 
of  clergy. 

VI.  Blanching  copper,  4'C. 

By8&.'9  W.  cap.  25.  Blanching  copper  for  sale,  or  mixing  blanched  copper  with 
silver. 

Or  knowingly  buying  or  selling,  or  offering  to  sale  such,  or  aiiy  other  malleable  mix- 
ture of  metals  or  minerals  heavier  tlian  silver,  and  wearing  like  gold, 

Or  receiving,  paying,  or  putting  off  any  counterfeit,  or  unlawfully  diminished  milled 
money  (not  cut  in  pieqcs)  at  a  lower  rate  than  it  imports,  or  was  coined  or  counterfeited 
for,  is  made  felony. 


HISTORIA  PLACITORUM  CORONA.  698 

Felonies  enacted  in  the  time  of  Queen  Anne. 

I.  Wilfully  destroying  any  ship. 

By  1  Ann  sess.  2.  cap.  9.  and  4  Geo.  1,  cap.  12.  It  is  felony  for  any  captain,  master, 
mariner,  or  other  officer  belonging-  to  any  ship  wilfully  to  cast  away,  burn,  or  destroy 
the  said  ship,  or  procure  the  same  to  be  done  to  the  prejudice  of  the  owner. 

Or  for  the  owner,  captain,  Sfc.  to  do  the  like,  to  the  prejudice  of  any  underwriter  of 
the  policy  of  insurance,  or  of  any  merchant,  who  shall  load  goods  therein. 

II.  Receiving  stolen  goods. 

By  5  Ann.  cap.  31.  Receivers  of  stolen  goods,  knowing  them  to  be  stolen,  are  declared 
guilty  of  felony,  as  accessaries. 

III.  Assaulting  a  privy  counsellor  in  the  execution  of  his  [  699  1 

office. 

By  19  Ann.  cap.  6.  It  is  felony  without  benefit  of  clergy  to  assault,  wound,  or  attempt 
to  kill  a  privy  counsellor  in  the  execution  of  his  office. 

The  occasion  of  making  this  act  see  supra  p.  230.  in  notis, 

IV.  Counterfeiting  the  seal  of  the  South-Sea  company,  South-Sea 

bonds,  Si'C. 

By  9  Ann.  cap.  21.  It  is  felony  without  benefit  of  clergy  to  forge  or  counterfeit  the 
common  seal  of  the  South  Sea  company, 

Or  to  forge,  counterfeit,  or  alter  any  of  their  bonds. 

Or  knowingly  to  tender,  or  offer  to  dispose  of  the  same,  with  intent  td  defraud  any 
person,  see  6  Geo.  1.  cap.  11. 

V.  Making  an  hole  in  a  ship,  or  stealing  any  pump  from  a  ship. 

By  12  Ann.  cap.  18.  made  perpetual  by  4  Geo.  1.  cap.  12.    The  making  any  hole  in  a 

ship  in  distress, 

Or  stealing  any  pump  belonging  to  such  ship,  or  aiding  or  abetting  thereto, 

Or  wilfully  doing  any  thing  tending  to  the  immediate  loss  of  such  ship,  is  made  felony 

without  benefit  of  clergy. 

Felonies  enacted  in  the  time  of  King  George  I. 

I.  Concerning  riotous  assemblies. 

By  1  Geo.  1.  cap.  5.  (which  is  for  the  most  part  copied  from  an  expir^  act  of  1  Mar. 
cap.  12.)  if  twelve  persons  or  more,  being  unlawfully  and  riotously  assCTnbled,  shall  so 
continue  together  to  the  number  of  twelve  for  the  space  of  one  hour  after  proclamation 
made  to  depart,  such  continuance  is  made  felony  without  benefit  of  clergy  ; 

As  also  to  oppose  or  hinder  the  reading  the  proclamation, 

Or  to  continue  to  the  nuiftber  of  twelve  for  one  hour  after  such  hinderance  so  made, 
having  knowledge  thereof. 

By  the  same  act  it  is  felony  without  benefit  of  clergy  for  any  persons,  unlawfully  and 
riotously  assembled,  with  force  to  pull  down,  or  begin  to  pull  down  any  church,  or  chapel, 
or  building  for  religious  worship  allow'd  by  the  toleration  act,  or  any  dwelling-house, 
barn,  stable,  or  other  out-house. 

II.  Maliciously  burning  any  wood  or  coppice. 

By  1  Geo.  1.  cap.  48.  and  6  Geo.  1.  cap.  16.  It  is  felony  for  any  person  maliciously  to 
set  on  fire  or  burn  any  wood,  underwood,  or  coppice,  or  any  part  thereof. 

III.  Returning  from  transportation,  taking  a  reward  for  helping  to 

stolen  goods,  S,'C. 

By  4  Geo.  1.  cap.  11.  If  any  offender  ordered  for  transportation  beyond  sea  shall  return 
to,  or  (by  6  Geo.  1.  cap.  23.)  be  found  at  large  in  Great  Britain  or  Ireland,  without  some 
lawful  cause  before  the  expiration  of  his  term,  without  licence  from  his  majesty,  he  shall 
be  guilty  of  felony  without  benefit  of  clergy. 

By  the  same  statute,  whoever  shall  take  any  money  or  reward  under  pretence  of  help- 
ing any  person  to  stolen  goods,  unless  he  apprehend  the  felon,  and  give  evidence  against 


699  HISTORIA  PLACITORUM  CORONA. 

him  at  his  trial,  shall  be  guilty  of  felony,  and  shall  suffer  in  the  same  manner  as  if  he 
had  stolen  them  himself,  with  such  circumstances,  as  the  same  were  stolen. 
Upon  this  clause,  Jonathan  Wild  was  executed,  10  Geo.  1. 

IV.  Counterfeiting  army  debentures. 

By  5  Geo.  1.  cap.  14.  6  Geo.  1.  cap.  17.  9  Geo.  1.  cap.  5.  It  is  felony  without  benefit  of 
clerjfy  for  any  person  to  alter  or  counterfeit  any  army  debentures, 

Or  fraudulently  to  issue  out  any  other  than  for  the  sums  certified  by  the  commissioners. 

r  700  ]  V.  Counterfeiting  South-Sea  receipts  or  warrants,  Sj-c. 

By  6  Geo.  1.  cap.  11.    It  is  made  felony  without  benefit  of  clergy  for  any 
one  to  alter,  forge,  or  counterfeit  any  South-Sea  receipt  for  a  subscription  to  the  stock, 
Or  warrant  for  a  dividend. 
Or  any  indorsement  or  writing  thereon. 
Or  knowingly  to  tender  or  offer  to  dispose  of  the  same  with  intent  to  defraud  any  one. 

VI.  Counterfeiting  the  seal  of  the  two  assurance  companies. 

By  6  Geo.  1.  cap.  18.  The  counterfeiting  the  corporation  seal  of  either  of  the  assurance 
companies,  now  known  by  the  names  of  the  Royal  Exchange  and  the  London  Assurance, 

Or  altering  any  policy,  bill,  bond,  or  other  obligation  under  their  common  seal,    . 

Or  knowingly  paying  away  such  policy,  &c.  or  demanding  the  money  thereon,  is 
felony  without  benefit  of  clergy. 

VII.  Maliciously  spoiling  the  garments  of  any  persons  in  the  streets. 

By  6  Geo.  1.  cap.  23.  The  wilful  and  malicious  tearing,  spoiling,  cutting,  burning,  or 
defacing  the  garments  or  clothes  of  any  person  in  the  streets  or  highways  is  felony. 

VIII.  Smuggling. 

By  8  Geo.  1.  cap.  18.  If  any  persons  above  the  number  of  five  carrying  offensive  arms, 
or  being  in  disguise,  shall  be  found  passing  with  foreign  goods  from  any  ship  without 
due  entry  and  payment  of  the  duties. 

Or  shall  forcibly  resist  any  officer  of  the  customs  or  excise  in  the  seising  run  goods, 
they  shall  be  guilty  of  felony. 

IX.  Counterfeiting  the  name   of,  or  personating  a  proprietor  for 

transferring  stock,  or  receiving  dividends. 

By  8  Geo.  1.  cap,  22.   To  counterfeit  the  name  of  any  proprietor, 

To  forge  or  ^procure  to  be  forged,  or  wilfully  to  act  and  assist  in  forging  a  letter  of 
attorney,  or  otner  instrument  to  transfer  any  share  in  the  capital  stock  of  any  corpora- 
tion established  by  act  of  parliament. 

Or  to  receive  any  annuity,  or  dividend  attending  such  share, 

Or  falsly  to  personate  any  proprietor  for  the  purposes  aforesaid,  is  felony  without  bene- 
fit of  clergy.  • 

X.  The  like  as  to  annuity  orders. 

By  9  Geo.  I.  cap.  12.  To  do  the  like  with  relation  to  any  annuity  order,  is  made  felony 
without  benefit  of  clergy. 

XL  The  Waltham-hlack  act  against  appearing  in  disguise  in  any 
forest,  4'C.  unlawfully  hunting  deer,  robbing  any  warren,  destroy- 
ing fish,  maiming  cattle,  destroying  trees  in  any  avenue,  4'C.  firing 
houses,  stacks  of  corn,  <5'C.  maliciously  shooting  at  any  person, 
sending  threatening  letters,  Sfc. 

By  9  Geo.  1.  cap.  22.  continued  by  12  Geo.  1.  cap.  30.  and  6  Geo.  'i.  cap.  37.  till 
Sept.  1.  1736,  and  from  thence  to  the  end  of  the  next  session  of  parliament,  it  is  made 
felony  without  benefit  of  clergy,  for  any  person  armed  with  offensive  weapons,  and  hav- 
ing his  face  blacked,  or  otherwise  disguised,  to  appear  in  any  forest,  chase,  park,  &,c.  or 
in  any  high  road,  open  heath,  common,  or  down, 

Orunlawfuily  and  wilfully  to  hunt,  wound,  kill,  or  steal  any  red  or  fallow  deer, 

Or  unlawfully  to  rob  any  warren,  ^c. 

Or  to  steal  any  fish  out  of  any  river  or  pond,  ' 


HISTORIA  PLACITORUM  CORONiE.  700 

Or  unlawfully  to  break  down  the  head  or  mound  of  any  fish-pond,  whereby  the  fisli 
shall  be  lost  or  destroyed, 

Or  unlawfully  and  maliciously  to  kill,  maim,  or  wound  any  cattle, 

Or  to  cut  down,  or  otherwise  destroy  any  trees  planted  in  any  avenue,  or  growing  in 
any  garden,  orchard,  or  plantation  for  ornament,  shelter,  or  profit. 

Or  to  set  fire  to  any  house,  barn,  or  out-house,  hovel,  cock,  mow,  or  stack  of  corn, 
straw,  hay,  or  wood. 

Or  maliciously  to  shoot  at  any  person  in  any  dwelling-house  or  other  place. 

{Upon  this  clause  Edward  Arnold  was  convicted  at  Surrey /en<-assJ2es,  1723-4, /or 
shooting  at  lord  Onslow,) 

Or  knowingly  to  send  any  letter  without  any  name,  or  signed  with  a  ficti- 
tious name,  demanding  money,  venison,  or  other  valuable  thing,  f  701  1 

Or  forcibly  to  rescue  any  person  being  lawfully  in  custody  for  any  of  the 
offenses  before-mentioned. 

Or  to  procure  any  person  by  gift  or  promise  of  money,  or  other  reward,  to  join  in  any 
such  unlawful  act. 

No  attainder  on  this  act  shall  work  corruption  of  blood,  loss  of  dower  or  forfeiture. 

This  act  was  occasioned  by  the  devastations  and  injuries  then  lately  committed  in  a 
violent  manner  by  several  persons  near  Waltham,  who  had  appeared  blacked  and  dis- 
guised in  the  chases,  forests,  Sfc.  and  was  from  thence  called  the  Waltham-blach  act. 

XII.  Concerning  the  pretended  privilege  of  the  Mint  in  Southwark. 

By  9  Geo.  1.  cap.  28.  If  any  person  shall  within  the  place  commonly  called  the  Mint^ 
or  the  pretended  limits  thereof,  wilfully  obstruct  any  person  serving  or  endeavouring  to 
serve  or  execute,  any  will,  warrant,  or  legal  process,  S^c. 

Or  shall  assault,  or  abuse  any  person  for  having  so  done,  whereby  he  shall  receive  any 
damage  or  bodily  hurt; 

Or  shall  oppose  any  officer  of  justice,  or  person  aiding  such  officer  in  the  execution 
of  any  writ,  warrant,  or  process,  S^c,  or  shall  be  abetting  thereto; 

Or  shall  rescue,  or  knowingly  harbour  or  conceal  any  prisoner  taken  upon  such  pro- 
cess; ' 

Or  shall  presume  to  exercise  any  unlawful  jurisdiction  for  supporting  the  pretended 
privilege  within  the  said  place,  such  offender  shall  be  adjudged  guilty  of  felony,  and  be 
transported  for  seven  years. 

And  if  any  person  wearing  any  vizard,  S^c.  or  having  his  face'or  body  disguised,  shall 
join  or  abet  any  riot,  or  oppose  the  execution  of  any  legal  process,  S^c.  within  the  limits 
aforesaid,  such  offender  shall  be  adjudged  guilty  of  felony  without  benefit  of  clergy. 

And  every  person  aiding  or  abetting,  concealing  or  harbouring  such  disguised  person, 
shall  be  adjudged  guilty  of  felony,  and  be  transported. 

XIII.  The  Uke  with  respect  to  Wapping,  Stepney,  4*c. 

By  11  Geo.  1.  cap.  22.  The  same  provision  is  made  against  most  of  the  said  offenses, 
if  committed  within  the  hamlet  of  Wapping,  Stepney,  or  any  other  place  within  the  bills 
of  mortality,  whereof  presentment  shall  have  been  made  by  the  grand  jury  at  a  general 
or  quarter-sessions. 

XIV.  Counterfeiting  East-India  bonds,  or  indorsements  thereon,  or 

on  South-Sea  bonds,  ^'c. 

By  12  Geo.  1.  cap.  32.  Whoever  shall  forge  or  counterfeit,  or  wilfully  assist  in  forg- 
ing or  counterfeiting  the  name  or  hand  of  the  accountant-general  of  the  court  of  chancery, 
the  register,  clerk  of  the  court,  report-oflace,  or  any  of  the  cashiers  of  the  bank  of  Eng- 
land, to  any  certificate,  report,  (^c. 

Or  any  East-India  bond  or  indorsement  thereon; 

Or  any  indorsement  on  any  Soulh-Sea  bond,  shall  be  adjudged  guilty  of  felony  without 
benefit  of  clergy. 

XV.  Assaulting  any  master  wool-comber,  weaver,  maliciously  break- 

ing tools,  (§'C. 

By  12  Geo,  1.  cap.  34.  If  any  person  shall  assault  any  master  wool-comber,  or  master  . 
weaver,  or  other  person  concerned  in  the  woollen  manufacture,  whereby  he  shall  receive 


701  HISTORIA  PLACITORUM  CORONJ^. 

any  bodily  hurt;  for  not  complying  with  any  such  illegal  by-laws,  Sfc.  as  in  the  act  men- 
tioned, 

Or  shall  write  or  send  any  threatening  letter  to  such  person  for  not  complying  with 
such  illegal  by-laws,  or  with  any  demands  or  pretenses  of  his  workmen,  or  others  em- 
ployed by  him  in  the  woollen  manufacture,  he  siiall  be  deemed  guilty  of  felony,  and  be 
transported  for  seven  years. 

If  any  person  shall  maliciously  cut  or  destroy  any  woollen  goods  in  the  loom  or  on 
the  rack; 

Or  shall  destroy  any  rack  on  which  such  goods  are  hanged  in  order  to  dry; 

Or  shall  wilfully  break  any  tools  used  in  the  making  such  woollen  goods,  not  having 
the  consent  of  the  owner  so  to  do; 

Or  shall  break  or  enter  by  force  into  any  house  or  shop  by  night  or  by  day  for  any 
of  the  purposes  aforesaid,  such  offender  shall  be  adjudged  guilty  of  felony  without  benefit 
of  clergy. 

r  702  "I     Felonies  enacted  in  the  time  of  King  George  II. 

I.  Maliciously  breaking  down  turnpikes. 

By  1  Geo.  2.  cap.  19.  5  Geo.  2.  cap.  33.  8  Geo.  2.  cap.  20.  It  is  made  felony  without 
benefit  of  clergy  for  any  person  maliciously  to  break  down  or  destroy  any  turnpike-gate 
or  other  fence  belonging  to  such  turnpike  erected  to  prevent  passengers  from  passing  by 
without  paying  the  toll,  or  forceably  to  rescue  any  person  lawfully  in  Custody  for  such 
offense. 

Attainder  by  this  act  not  to  work  corruption  of  blood,  loss  of  dower,  or  forfeiture. 

II.  Forging  of  deeds,  stealing  bonds,  S,'C. 

By  2  Geo.  2.  cap.  25.  The  forging  or  counterfeiting,  or  procuring  to  be  forged  or 
counterfeited  any  deed,  will,  bond,  writing  obligatory,  bill  of  exchange,  promissory  note 
for  payment  of  money,  tlie  indorsement  or  assignment  of  any  bill  of  exchange,  or  pro- 
missory note  for  payment  of  money,  or  any  acquittance  or  receipt  for  money  or  goods, 
or  knowingly  to  utter  or  publish  as  true  any  forged  deed,  SfC,  with  intention  to  defraud 
any  person,  is  felony  without  benefit  of  clergy. 

By  the  same  statute  to  steal  or  take  by  robbery  any  bonds,  notes,  orders,  tallies,  Sfc. 
is  felony  of  the  same  nature,  and  in  the  same  degree,  as  if  the  money  secured  by  such 
bonds,  Sfc.  and  remaining  unsatisfied,  had  been  stolen  or  taken  by  robbery. 

This  act  was  made  to  continue  only  for  five  years  from  29  June  1729,  and  from  thence 
to  the  end  of  the  then  next  sessions  of  parliament. 

III.  Stealing  lead,  iron,  <§'C.  fixt  to  anyhouse  or  building. 

By  4  Geo.  2.  cap.  32.  To  steal,  rip,  cut,  or  break  with  intent  to  steal  any  lead,  iron 
bar,  iron  gate,  iron  palisado,  or  iron  rail  fixed  to  any  dwelling-house  or  other  building 
used  with  such  dwelling-house,  or  fixed  in  any  garden,  orchard,  court-yard,  fence  or 
outlet  belonging  to  any  dwelling-house  or  other  building  is  felony,  and  so  it  is  in  the 
aiders  and  abetters;  and  such  as  shall  buy  or  receive  such  lead  or  iron,  knowing  the 
same  to  be  stolen. 

IV.  Assaulting  with  an  intent  to  rob. 

By  7  Geo.  2.  cap.  21.  It  is  made  felony  with  any  offensive  weapon  or  instrument  un- 
lawfully and  maliciously  to  assault,  or  by  menaces,  or  by  any  forceable  or  violent  man- 
ner  to  demand  any  money,  goods  or  chattels  of  any  person,  wiih  a  felonious  intent  to 
commit  robbery  on  such  persiin. 

V.  Counterfeiting  the  acceptance  of  a  bill  of  exchange,  or  any  ac- 

countable receipt. 

By  7  Geo.  2.  cap.  22.  If  any  person  shall  falsly  make,  alter,  forge,  or  counterfeit,  or 
cause  or  procure  to  be  counterfeited,  iSfc.  any  acceptance  of  any  bill  of  exchange,  or  the 
number,  or  principal  sum  of  any  accountable  receipt,  for  any  note,  bill,  or  other  security 
for  payment  of  money,  or  any  warrant  or  order  tor  payment  of  money,  or  delivery  of 
goods,  with  intent  to  defraud  any  person,  or  shall  witli  such  intent  knowingly  utter  or 
publish  the  same  as  true,  he  shall  be  deemed  guilty  of  felony. 

.  [For  the  continuation  of  felonies  enacted  since  the  7  Geo.  2.  see  p.  711,  Sfc] 


HISTORIA  PLACITORUM  CORON:^.  703 


CHAPTER  LXV. 

CERTAIN    GENERAL    OBSERVATIONS    CONCERNING    FELONIES  BY  ACT 
■     OF   PARLIAMENT. 

I.  Generally,  if  an  act  of  parliament  be,  that  if  a  man  commit 
such  an  act,  he  shall  have  judgment  of  life  and  member,  this  makes 
the  offense  felony,  and  this  was  ordinarily  the  clause  used  in  antient 
statutes,  as  TVesim.  2  cap.  34., {a)  14  E.  3.  cap.  10.  2S  E.  3.  cap.  3. 
13  /?.  2.  cap.  3.  <S-c.  Co.  P.  C.  cap.  29.  ;?.  91. 

2.  And  consequently  there  ensued  thereupon  corruption  of  blood, 
eschete  to  the  lord,  and  the  wife's  loss  of  dower. 

3.  But  yet  there  may  be  and  frequently  are  in  acts  of  parliament, 
making  new  felonies,  provisions,  that  there  shall  be  no  corruption  of 
blood,  disherison  of  the  heir,  or  loss  of  dower;  and  this  is  done 
sometimes  by  enacting  words,  as  in  1  Jac.  cap.  31.  for  going  abroad 
with  a  plague-sore,  sometimes  by  a  proviso,  that  it  shall  not  extend 
to  corruption  of  blood,  loss  of  dower,  8rc.  as  8  E/iz.  cap.  3.  5  Eliz. 
cap.  14.  and  sometimes  by  the  words  saving  to  the  ivife  her  dower, 
and  to  the  heir  his  inheritance,  as  upon  the  statute  of  1  Jac.  cap.  12. 
for  witchcraft.  • 

.4.  But  notwithstanding  such  a  clause,  the  king  shall  have  the 
forfeiture  of  his  lands  during  his  life,  and  also  his  goods,  for  no 
eschete  can  come  to  the  lord,  where  the  inheritance  is  saved  to  the 
heir. 

5.  But  by  a  special  clause,  forfeiture  of  goods  as  well  as  of  lands 
may  be  provided  against,  as  in  the  act  of  1  Jac.  cap.  31.  of  going 
out  with  a  plague-sore.     Co.  P.  C.  cap.  6.  p.  47.  and  cap.  28.  p.  90. 

6.  A  saving  or  exclusion   of  corruption  of  blood  doth 
virtually   make   the   heir   inheritable,  and   saves  also   the  [704  3 
"woman's  dower.     Co.  P.  C.  cap.  28.  super  statut.  1  Jac. 

cap.  31. 

7.  By  an  act  making  a  new  felony,  clergy  is  not  excluded  from 
the  offender,  without  special  words.  Co.  P.  C.  cup.  19.  p.  73.  super 
statut.  8  //.  6.  cap.  12.  against  stealing  records. 

8.  In  all  acts  making  a  new  treason,  felony,  or  misprision  of  trea- 
soin,  peers  are  to  have  their  trial  by  their  peers,  tho  no  special  clause 
enacting  it.  Co.  P.  C.  cap.  21.  p.  89.  super  statut.  1  Jac.  6.  cap.  11. 
for  marrying  two  husbands. 

9.  An  act  making  any  offense  to  be  a  felony,  tho  it  speaks  not  of 
accessaries  before  or  after,  yet  they  are  impliedly  contained. (6) 

10.  Nay,  altho  the  statute  makes  an  offense  to  be  felony  in  them 
that  commit  it,  their  counsellors,  procurers,  and  abetters,  to  be  felons, 
and  speaks  nothing  of  accessaries  after ;  yet  by  the  opinion  of  my 

(«)  See  2  Co.  Instil,  p.  434.  (6)  Co.  P.  C.  p.  59. 

VOL.  I. — 58 


704  HISTORIA  PLACITORUM  CORON/E. 

lord  Coke,  receivers  and  accessaries  ofler  are  also  virtually  implied, 
as  in  the  statute  of  Westni.  2.  in  rape,  Co.  P.  C.  cap.  19.  p.  72.  upon 
the  statute  of  3  H.  7.  cap.  2.  for  carrying  away  women,  Co.  P.  C. 
cup.  12.  p.  61.  upon  the  statute  of  5  //.  4.  cap.  4.  against  multipli- 
cation, Co.  P.  C.  cap.  20.  p.  74.  upon  the  statute  of  1  Jac.  cap.  12. 
of  witchcraft,  Co.  P.  C  cap.  d.  p.  45.  in  fine,  tho  Stamford  be  of 
another  opinion. (c) 

11.  An  act,  that  makes  an  offense  by  name,  as  rape,  <§'c.  to  be 
felony,  virtually  makes  all  that  are  present,  aiding,  and  assisting 
principals,  tho  one  only  doth  the  fact,  tho  as  to  point  of  clergy  in 
some  cases  it  differs :  de  quo  posted. 

12.  An  act,  which  makes  the  offender,  his  counsellers  and  abet- 
ters, guilty  of  felony,  yet  regularly,  mak^s  not  the  counsellers,  pro- 
curers or  abetters  principals,  unless  present,,  but,  if  they  be  absent, 
leaves  them  in  the  condition  of  accessaries  before.,  as  upon  the 
statute  of  1  Jac.  cap.  12.  of  witchcraft,  and  other  statutes  of  that 
kind,  unless  in  express  words  it  makes  them  all  principals,  as  is  done 
by  the  statute  of  3  H.  7.  caj).  2.  Co.  P.  C.  cap.  12.  p.  61.  the  only 
instance  of  that  kind. 

13.  In  an  act  limiting  a  second  offense  to  be  felony,  but 
["705]  the  first  only  a  misdemeanor,  there  must  be  two  things  to 
make  the  second  offense  felony,  viz.  1.  A  judgment  given 
for  the  first  offense.  2.  The  second  offense  must  be  conmiitted  after 
the  judgjpent  for  the  first,  otherwise  it  makes  not  felony,  as  in  case 
of  forgery  upon  the  statute  of  5  Eliz.  cap.  14.  Co.  P.  C.  cap.  75. 
p.  172. ,(r/)  and  npon  the  statute  of  1  Jac.  cap.  12.  of  witchcraft. 
Co.  P.  C.  cap.  6.  p.  46.  2  Co.  Instil,  p.  468. 

14.  Therefore  where  those  and  some  other  statutes  speak  of  a 
second  offense  after  a  conviction  of  a  former,  it  is  not  intended 
barely  of  a  conviction  by  verdict,  unless  judgment  be  given  upon  it. 
Co.  P.  C.p.46. 

15.  An  act  jnaking  a  felony,  and  limiting  it  to  be  tried  in  the 
county  where  the  party  is  apprehended,  unless  there  be  negative 
words,  and  not  elsewhere,  is  but  cumulative,  and  he  may  be  indicted 
where  the  offense  was  committed,  as  upon  the  statute  of  1  Jac.  cap. 
11.  marrying  a  second  husband  or  wife,  Co.  P.  C.  cap.  21.  p.  88. 
and  upon  the  statute  of  7  H.  7.  cap.  1.  and  3  H.  8.  cap.  5.  soldiers 
departing.     Co.  P.  C.  cap.  26.  p.  86,  87. 

16.  A  second  statute  enacting  the  same  offense  to  be  felony,  that 
was  so  enacted  before,  with  some  alterations  is  but  cumulative,  and 
no  repeal  of  the  former  act;  as  the  statute  of  3  H.  8.  cap.  5.  of  soldiers 
making  their  departure  without  the  licence  of  the  king's  lieutenant 
felony  (where  the  act  of  7  H.  7.  cap.  1.  makes  it  felony,  if  without 
the  captain's  licence,)  yet  repeals  not  the  former,  because  it  is  but  an 
affirmative  act;  so  39  Eliz.  cap.  4.  for  banishing  incorrigible  rogues 
is  not  taken  away  by  1  Jac.  cap.  7.  wliich  adds  burning  in  the  shoul- 
der, and  sending  them  to  their  last  habitation. 

(c)  Stamf.  P.  C.  fol.  44.  6.  (d)    Vide  supra,  p.  685. 


HISTORIA  PLACITORUM  CORONA.  705 

17.  If  one  statute  be  grat'ted  upon  another  statute  relative  to  it  in 
order  to  the  better  execution  of  a  former  statute,  if  the  former  be 
repealed,  the  latter  is  thereby  virtually  repealed,  as  the  statutes  of 
Labourers{e)  being  repealed  by  5  Eliz.  cap.  4.  the  statute  of 
3  H.  6.  cup.  1.  making  congregations  of  masons  feJons  is  [706] 
thereby  repealed. (/)     Co.  P.  C.  cap.  35.  p.  49. 

IS.  If  a  statute  be  but  temporary  and  discontinued,  and  then  re- 
vived by  a  new  act  of  parliament;  or  if  a  statute  be  made  touching 
a  new  felony,  and  repealed  and  re-enacted,  the  conclusion  of  the 
indictment  contra  formam  statutorum  is  good;  but  the  best  way  is 
to  conclude  contra  formam  stutut.  in  hnjiism,odi  casii  edit.  S,'provis. 
with  an  abbreviation,  because  in  construction  of  law  it  shall  be  taken 
ehher  statuti  or  statutorum,  which  may  best  maintain  the  indict- 
ment in  point  of  law. (^) 

0  19.  A  statute  making  a  new  felony  of  an  offense,  that  consists  of 
an  act  partly  in  the  kingdom,  and  partly  out  of  tlie  kingdom,  and 
limiting  it  to  be  tried  where  the  offense  is  committed,  shall  be  con- 
strued to  be  where  that  part  of  the  offense  is  committed,  that  is  with- 
in the  kingdom,  as  upon  the  statute  of  1  Jac.  cap.  2.  passing  the  sea, 
and  serving  a  foreign  prince,  without  taking  the  oath  of  obedience, 
shall  be  tried  in  that  county  where  the  part  was  that  he  passed  the 
sea.     Co.  P.  C.  cap.  23.  p.  SO. 

20.  An  act  making  a  new  felony  extends  not  to  an  infant  under  the 
age  of  discretion,  viz.  fourteen  years  old  ;  but  if  he  be  of  that  age,  it 
binds  him.    Plowd.  Com.  465.  a.  Eyston  and  Stud's  case. 

21.  Whether  the  word  king^  is  personal  to  the  then  king,  or  extends 
to  his  successors  in  acts  of  parliament?  It  is  true  in  grants  of  judicial 
or  ministerial  offices  that  concern  administration  of  justice,  as  judges 
or  sheriffs,  a  grant  of  such  an  office,  durante  beneplacito  regis,  is 
simply  determined  by  the  king's  death.  12  Co.  Rep.  p.  4S.  Nay 
the  grant  of  a  judicial  olBce  by  the  king  quam  diu  se  bene  gesserit, 
tho  it  be  a  freehold, determines  by  the  king's  death;  for  it  is  personal 
to  the  king  that  grants  them;  but  it  is  held,  that  the  grant  of  offices 
of  another  nature,  or  of  lands  durante  beneplacito  nostro 

doth  not  determine  by  the  death  of  the  king  without  some  [  707  ] 
act  or  declaration  by  the  successor  to  determine  it.     12  Co. 
Jiep.  p.  48,49. 

But  as  touching  acts  of  parliament,  regularly  the  word  kiyig  ex- 
tends to  his  successors, (A)  and  therefore  the  statutes  of  11  ^.  7.  cap. 
IS.  for  service  in  the  king's  wars,  7  H.  7.  cap.  1.  for  departing  of 
soldiers,  tho  the  preamble  seems  personal  to  that  king,  yet  (it  hath 
been  ruled)  to  include  successors,  Co.  P.  C.  cap.  26.  p.  86.  Bi/.  211.  a. 
so,  the  statute  of  23  H.  S.  cap.  4.  for  brewers,  Noi/'s  Pep.  p.  118. 

(e)  23  E.  3.  cap.  1.  and  25  E.  3.  cap.  1. 

(/)  For  this  last  mentioned  statute  recites  as  the  ground  thereof,  tiiat  the  congrega- 
tions of  masons  had  violated  the  good  effects  of  the  statutes  of  Labourers. 

(g)  But  this  piece  of  our  author's  advice  cannot  now  be  observed,  because  by  the  late 
acts  of  4  Geo.  2.  cap.  2G.  Sf  6  Geo.  2.  cup.  6.  all  indictments,  informations,  &c.  are  re- 
quired to  be  in  words  at  length,  and  not  abbreviated. 

(A)  Vide  supra,  p.  100. 


707  HISTORIA  PLACITORUM  CORONA. 

Chalchman  and  Wright.  So  Poyning^s  law,  10  H.  7.  in  Ireland 
for  the  manner  of  passing  acts  of  parliament,  tho  that  act  speaks  only 
of  the  king,  without  successors,  yet  it  extends  to  his  successors,  and 
so  declared  3  <§•  4  P.  <§•  M  cap.  4.  in  Hibernid,  12  Co.  Rep.  109.  b. 
110.  a. 

And  altho  the  power  of  altering  the  laws  of  Wales  was  a  great 
trust  reposed  in  H.  8.  by  the  statute  of  34  H.  8.  cap.  26.  for  Wales, 
and  was  thought  by  some  to  cease  by  his  death,  12  Co.  Rep.  p.  48. 
yet  they  durst  not  rest  upon  that,  but  it  was  specially  repealed  by  the 
statute  of  21  Jac.  cap.  10. 

A  statute  made  to  continue  during  the  king's  pleasure,  doth  not 
determine  by  his  death,  unless  it  be  specially  relative  to  the  person 
of  the  king,  as  during  the  pleasure  of  the  king  that  noiv  is,  or  ac- 
cording to  some  dicti  domini  regis,  M.  24  Eliz.  Maoris  Rep.  n.  311. 
p.  176.  jjer  Mede ;  and  therefore  it  seems  that  in  such  case  the  sue* 
cessor  must  make  some  proclamation  or  declaration  of  record  to  de- 
termine it,  before  it  be  determined;  as  upon  the  statute  of  8  H.  6. 
cap.  11.  for  the  manner  of  taking  apprentices  in  London,  which  was 
in  truth  the  case  in  Moor,  n.  311.  but  the  statute  of  5  Eliz.  cap.  4. 
repealing  all  acts  touching  apprentices  and  labourers,  and  making  a 
special  provision  to  save  the  customs  of  London,  hath  quieted  that 
question. 

By  the  statute  of  8  H.  6.  cap.  24.  it  is  enacted,  "That  no  English- 
man sell  to  any  merchant  alien  any  merchandize,  but  for  ready  pay- 
ment." By  the  statute  of  9  H.  6.  cap.  2.  it  is  enacted,  "  That  notwith- 
standing the  former  statute  they  may  sell  for  six  months  time,  and 
this  ordinance  shall  endure  so  long  as  shall  please  the  king."  It  is 
held  10  H.  1.1.  b.  that  this  statute  remains  as  a  suspension 
r708]  of  the  former  act  of  S  H.  6.  notwithstanding  the  death  of 
Henry  VI.  till  repealed  by  proclamation  by  his  successor. 

And  yet  in  case  of  capital  offenses  limited,  and  de  novo  enacted  by 
act  of  parliamenl  to  continue  during  the  king's  pleasure,  it  is  not  safe 
to  proceed  upon  them  after  the  king's  death  ;  and  tho  in  matters  of 
misdemeanors  such  continuance  is  limited  by  acts  of  parliament,  yet 
I  do  not  remember  any  such  kind  of  limitation  in  acts  enacting  capi- 
tal ofienses,  but  they  are  either  perpetual,  or  limited  to  continue  for 
a  time  certain,  as  seven  years,  ^-c.  or  till  the  end  of  the  next  session 
of  parliament,  S^c. 

22.  An  act  of  parliament,  that  makes  an  offense  felony,  doth  con- 
sequently introduce  the  punishment  of  concealing,  that  is,  misprision 
of  felony;  and  every  offense  made  felony  by  act  of  parliament,  in- 
cludeth  misprision,  and  the  party  may  be  indicted  of  misprision  of 
felony,  and  thereupon  fined  and  imprisoned,  2  R.  3.  10,  11.  And 
yet  in  Co.  P.  C.  p.  133.  upon  the  statute  of  33  H.  8.  cap.  1.  of  false 
tokens,  it  is  said,  where  a  corporal  punishment  only  is  inflicted  by 
act  of  parliament,  the  party  cannot  be  fined  and  imprisoned,  which 
is  to  be  understood  with  two  cautions,  viz.  1.  Where  the  indictment, 
4'C.  is  grounded  for  the  same  offense  contained  in  the  statute,  and 
therefore  it  crosseth  not  the  case  of  2  R.  3.  for  there  he  was  indicted 


HISTORL\  PLACITORUM  CORONA.  708 

for  tnisprision,  and  not  for  felony.  2.  Where  it  was  an  offense  at 
common  law,  there  if  the  indictment  be  grounded  barely  at  common 
law,  he  may  be  fined  and  imprisoned,  tho  the  statute  limit  a  cor- 
poral punishment,  as  in  case  of  false  tokens  he  may  be  indicted  as  a 
cheat. (*) 

(*)  Here  our  author  had  wrote  the  title  of  another  chapter  Touching  Piracy,  but  did 
not  proceed  in  it,  perhaps  because  he  had  referred  what  he  thought  needful  tcr  be  said  oa 
that  head  to  the  chapter  oi^  Clergy,  Part  II.  cap.  50. 


709 


ADDENDA  IN  NOTIS. 


Ad.  p.  270.  I.  19.  Rot.  Pari.  II.  H.  6.  n.  43.  A  Roy  noslre  Sover eigne  Seigneur  Be- 
sechen  humbly  your  communes  of  this  present  parlement,  that  where  one  JoAn  Carpenter 
o?  Bridham  in  the  s\\\Te  of  Sussex  husbondnian,  the  vii  of  Ff  cerer  the  yere  of  youre  noble 
reigne  the  viii,  saying  to  Isabell  his  wyfF,  that  was  of  the  age  of  xvi  yere,  and  hadde  be 
marled  to  hym  but  xx  dayes,  that  they  wold  goo  togedre  on  pilgrernage,  and  made  to 
arraye  hir  in  hir  best  arraie,  and  toke  liir  with  hym  fro  the  said  tonne  of  Bridhain  to 
the  toune  of  Stoiighton  in  the  said  shire,  and  there  with  woode  he  smote  the  said  Isabell 
his  wilf  on  the  hede  that  the  brayne  wende  oute,  and  with  his  knyffgaf  hir  many  other 
dedly  woundes,  and  streped  hir  naked  out  of  hir  clothes,  and  toke  his  knyff  and  slytte 
hir  belly  from  the  brest  doune,  and  toke  hir  bowels  oute  of  hir  body,  and  loked  if  she  were 
with  child.  And  thus  the  said  Jo/i«  murdrid  horibly  his  wift',  of  the  which  ho'ribly  niur- 
dre  the  Thursday  next  after  the  fest  of  Seint  Ambrose  the  bishop,  the  yere  of  youre 
reigne  by  foreseid,  tiie  said  Jo//w  was  endited  byfore  Sir  John  Bohun  Kt.  Sir  Henry  Hi/see 
Kt.  and  Wit.  Sydney  }'our  commissioners  of  your  pees  withinne  the  shire  foreseid,  and 
processe  made  out  upon  the  same  enditement  according  to  your  lawes  till  the  same  John 
Carpenter  was  outlavycd  of  the  said  mourdnre,  and  now  gratiously  for  the  same  cause 
arreste,  and  in  your  prisone  called  the  king's  bench:  Please  hit  to  youre  hie  right  wise- 
nesse  to  considere  the  horrible  murdure  foreseid,  and  by  auctorite  of  this  your  hie  court 
of  parliament  to  ordeine,  that  the  said  Juhn  Carpenter  may  be  juged  as  a  traytour.  and 
that  your  jugges  have  power  to  give  judgement  upon  him  to  be  drawed  and  hanged  as  a 
traytour,  in  eschewyng  of  such  horrible  mourdurs  in  tyme  corny  ng,  savying  allwayes  to 
tlie  lords  of  the  see  eschetes  of  his  lands  after  yere,  day  and  wast. 

Pur  ceo  qil  semble  encountre  la  libertee  de  Seint  Esglisfi,  le  Roy  s'  advisera. 

Ad.  p.  384. 1.  6.  after  electa  r.  scripturce  sacrcB  contraria,  for  so  Grosled  exprest  him- 
self, altho  these  words  are  omitted  in  our  author's  M.S.    See  Mat.  Paris,  p.  874. 

Ad  p.  396.  not\  (n)  in  Jine.  The  truth  is,  the  writ  for  burning  Satctre  was  indeed  a 
special  act  of  parliament  made  for  that  purpose,  for  so  is  a  writ  teste''d  per  regem  Sf  con- 
cilium in  parliamento  to  be  intended.  See  the  prince's  case.  8  Co.  Rep.fol.  19.  a.  Nor 
do  1  find  any  footsteps  of  heresy  being  punished  capitally  before  this  statute  and  that  of 
2  H.  4.  The  notion  that  the  writ  de  hceretico  comburendo  lay  at  common  law  seems  to  be 
a  mistake,  for  tho  that  writ  be  in  the  printed  register,  yet  it  is  not  in  the  antient  manu- 
script  registers;  see  State  Tr.  Vol.  11.  p.  [275].  That  this  was  not  the  antient  punishment 
of  heretics  in  England;  see  Mat.  Paris,  p.  105.  ft>r  Braclon  [Lib.  III.  de  corona  cap.  9] 
Briiton  [cap.  9.]  Fleta  [Lib.  I.  cap.  29  t^-  37.]  speak  .n(^  of  heretics,  but  of  apostates  and 
infidels:  And  tho  by  the  imperial  law  some  particular  heresies  were  punishable  with  ^eath : 
see  Cod.  Lib.  I.  tit.  5.1.  11,  12,  ^c.  yet  it  does  not  appear,  that  even  in  the  empire  he- 
resy  in  general  was  punished  capitally,  till  tiie  constitution  of  Frederic  II.  about  the  year 
1234,  which  indistinctly  adjudges  all  heretics  to  tiie  flames:  but  in  England  the  usual 
punishment  seems  to  have  been  imprisonment,  and  even  this  was  not  allowable,  tho  he 
were  hareticus  contumax,  before  the  pretended  statute  of  5  R.  2.  without  the  king's  spe-  • 
cial  license,  an  instance  whereof  is  in  Rymer''s  Fmdera,  Tom.  VI.  p.  651.  Rex  venerabili 
episcopo  Londonim  salutem.  Quia  accepimus  per  inqnisitionem  vcstram,  quod  Nichohius 

de  Drayton coram  vobis  congrue  convictus' &-  pro  h^retico  adjudicatus  existit, 

quodque  in  suo  errore  nephando  animo  induralo  nequiter  perseverans,  ad  fidei  catholicce 
unitatem  redire  non  curavit  nee  curat  in  prajsenti,  licet  scepids  ad  hoc  excitatus  «&  in- 
ductus,  sententiam  majoris  excommunicationis  in  hac  parte  incurrendo.  Cum  igitur 
sancta  mater  ecclesia  ita  tales  hcereticos  perseqnitiir,  ne  suo  veneno  alios  inficiant,  ut  in 
carceribus  custodiri  praecipiat.  Super  quo  nobis  f^npplicaslis,  Slc.  Nos  supplicationi 
vestrae  prsedictae  gratanl6r  concedentes,  ad  ipsura  Nicholaum  hsereticum  carcerali  custo- 


HISTORIA  PLACITORUM  CORONA.  709 

diae  ve?trrE  mancipare,  &  ipsum  in  carcere  vestro  custodire  faciendum,  quousque  dictum 
errore(n  suuin  revocaverit,  it  ad  fidei  catholics  unitatcni  redire  voluerit,  quan- 
tum in  nobis  est,  licentiam  concedimus  specialem.  Rot.  l^at.  44.  E.  3.  p.  1.  tn.    f  710  1 
23.  doiso.  .  L  J 

Ad.  p.  490.  in  fine.  Placita  coram  jusliciariis  ifinerantibus  apiid  crucem  lapideam  in 
com.  Midd.  anno  2  E  1.  incij.ierde  3.  Rot.  13.  in  dorso.  Seyton'  Alice  de  Covale  was 
arraigned  /no  morte  Johannes  Lipertung,  and  pleaded,  that  she  killed  him  se  defendendo, 
"eoquod  burgavit  domum  suam;  &  de  bono  &  male  ponit  se  stiper  patriam;  &,  xii  jura- 
tores  dicunt,  quod  prsedicta  Alicia  occidit  pripdictuni  Johannem  se  defendendo,  eo  quod 
voluit  domum  suam  burgasse,  &,  ipsam  occidisse,  si  posset.  Ideo  inde  quieta.  Et  ca- 
talla  praedicti  Johannis  confiscantur."  Placita  coram  eisdem  jtislic''  ibidem.  Rot.  12.  in 
dorso.  Thomas  le  Chapeleyn  nequiter  ^'  in  felonid,  f regit  ostium  domus  Isabellce  Lucas 
de  Bottewell.  Hue  and  cry  was  raised,  and  he  was  pursued,  and  killed  in  fugiendo  by 
one  William  Javene.  Javene  broujrht  the  king's  pardon  pro  morte  ilia,  "  Ideo  conceditur 
ei  firma  pax,  &  quia  praedictus  Thomas  le  Chaieleyn  occisus  fuit  in  fugiendo,  catalla 
ejus  confiscantur." 

Ad.  p.  508.  /.  15.  comes  into  the  dwellin<T. house,  but  as  the  case  is  reported  in  Kel.  31. 
he  was  indicted  for  brenking  into  the  house.    Vide  infra  Part  II.  p.  358, 

Add.  p.  556.  I.  ult.  H.  7  E.  2.  Rot.  88.  This  was  the  case  of  Thomas  de  Hedersete 
and  John  de  Upstone,  who  being  convicted  ed  quod  incendium  Sf  combustionem  domorum 
villiB  de  Lenne  ex  prescogitata  malilia  felonice  perpetrdrunt,  had  judgment  quod  suspen- 
dantiir. 

Ad.  p.  602.  3/.  28  E.  3.  Rot.  32.  "  The  abbot  of  St.  Albans  was  impleaded  coram 
rege,  pro  evasione  prisonum  d  gaola  de  Sancto  Albans,  cujus  custodiam  idem  Abbas  habet, 
utde  jure  abbatliiae  sus;"  amongst  whom  wa.fi  John  de  Heremyngford  a  clerk  convict;  but 
upon  the  jury's  finding,  "quod  idem  Johannes  de  Hcremyngford  tempore  evasionis  prfB- 
dictsB,  seu  aliquo  momcnto  ante  recaptioncm  ejusdem,  non  fuit  extra  visum  custodis  dic- 
tae  gaote  sub  prsedicto  Abbate,  consideraluni  est,  quod  praedictus  Abbas  eat  inde  qui- 
etus." 

M.  45  E.  3.  Rot.  17.  This  was  the  case  of  William  Bakere,  who  was  taken  cum  bonis 
Sf  calallis  furatis  by  the  constables  of  Danbury,  and  set  in  the  stocks,  from  whence  he 
escaped;  upon  which  the  said  constables  were  brought  coram  rege  ad  respondendum,  ^c. 
and  pleaded,  "  quod  postquam  latro  ceppos  fregit,  ipsi  earn  recenler  insecuti  fuerunt, 
visum  super  ipsum  semper  habentes,"  till  they  retook  him,  and  committed  him  to  the 
gaol  of  the  said  town;  "  et  quod  prasdictus  latro  adhuc  in  eadem  gaola  existit,  &c."  The 
king's  attorney  replied,  and  joined  issue  with  them,  as  to  their  keeping  constant  view  of 
him  till  he  was  retaken.  "  Et  juratores  dicunt,  quod  prcedictus  latro  arrestatus  &  captus 
fuit  per  eosdem  constabularios,  &.  in  ceppis  positus,  &  quod  iidem  constabularii  praedic- 
tum  latronem  postea  permiserunt  evadere,  absque  hoc  quod  ipsi  habuerunt  visum  super 
prasfatum  latronem  in  evadendo,  prout  ipsi  superiCis  allega,runt,  Ideo  consideratum  est, 
quod  praedicti  constabularii  erga  dominum  regem  de  cenlum  solidis  pro  evasione  prae- 
dicta  onerentur." 

Ad.  p.  621.  Mich.  7  R.  2.  Rot.  3.  This  was  the  case  of  John,  Vicar  of  Round  Church 
in  Cambridge,  who  was  indicted,  that  whereas  one  William  Gore  an  approver,  prisoner 
in  the  castle  of  Cambridge,  "  laicus  erat  tempore  captionis  corporis  sui,  jam  per  assen- 
sum,  Sc  licentiam  gaolarii,  &  janitoris  ibidem,  irruditus  [eruditus]  est,  &.  informatus  de 
leturura  [literatura]  per  eundem  vicarium,  &c."  Upon  this  indictment  the  vicar  surren- 
dered himself  coram  rege,  and  was  arraigned  de  felonid  pradictd,  and  pleaded  not  guilty. 
The  court  bailed  him  till  his  trial,  which  was  before  the  judges  of  nisi  prius  in  Cam- 
bridge, where  the  jury  found,  "  Quod  praedictus  Johannes  vicarius  in  nullo  est  culpabilis 
de  feloniae,  nee  de  aliquibus  articulis  sibi  impositis,  nee  unquam  se  ea,  occasione  retraxit. 
Ideo  consideratum  est,  qu6d  eat  inde  quietus." 

Ad.  p.  677.  The  reason  why  I  say  prest  must  now  be  understood  in  the  active  sense, 
IS  because,  tho  it  be  vulgarly  used  in  a  passive  signification  for  being  taken  away  by 
compulsion,  yet  in  legal  understanding  it  cannot  now  be  applied  to  any  to  make  him  a 
listed  soldier,  and  subject  to  penalties  as  such,  unless  he  actively  do  somewhat,  as  taking 
earnest,  or  the  like,  whereby  he  voluntarily  consents  to  his  being  listed,  and  so  amounts 
to  the  same  as  taking  prest. 

Ad.  p.  695.  The  statute  of  1  Jac.  cap.  12.  against  conjuration,  witchcraft,  Sfc.  is 
lately  repealed  by  an  act  of  this  present  parliament,  viz.  9  Geo.  2.  cap.  5. 


711  HISTORIA  PLACITORUM  CORONiE. 


FELONIES  ENACTED   SINCE    THE   LAST    EDITION  OF  THIS    BOOK,  WHICH 
WAS    IN    THE    YEAR    1736. 

VI.  Wilfully  destroying  or  damaging  Westminster-Bridge. 

By  9  Geo.  2.  cap.  2[).  Ifany  person  or  persons  shall  wilfully  and  maliciously  blow  up,  pull 
down,  or  destroy  the  bridge  or  any  part  thereof,  or  attempt  so  to  do,  or  unlawfully,  with- 
out authority  from  the  Commisvsioners,  remove  or  take  any  works  thereto  beionifing,  or 
direct  or  procure  the  same  to  be  done,  whereby  the  bridge  or  tlie  works  thereof  may  be 
damaged,  or  the  lives  of  the  passengers  endangered,  such  offender  or  offenders  being 
lawlully  convicted,  shall  be  adjudged  guilty  of  lelony,  and  shall  suffer  death  without 
benefit  of  clergy. 

[  712  ]  VII.  Subjects  inlisting,  and  persons  procuring  any  subject 
to  inlist,  to  go  abroad  and  serve  any  foreign  prince,  &c. 

By  9  Geo.  2.  cap.  30.  sect.  1.  and  29  Geo.  2.  cap.  17.  sect.  4.  Ifany  subject  shall  inlist 
or  enter  himself,  or  shall  engage  to  go  beyond  the  seas,  or  embark  with  intent  to  inlist 
and  enter  himself,  tho  no  inlisting  money  be  actually  paid  to  him ;  or  ifany  person  shall 
procure  any  subject  to  inlist  or  enter  himself,  or  hire,  or  retain,  any  subject  with  intent 
to  cause  him  to  inlist  or  enter  himself,  or  retain,  engage,  or  procure  any  subject  (tho  no 
inlisting  money  be  paid)  to  go  beyond  the  seas,  or  embark  with  intent  and  in  order  to  be 
inlisted  to  serve  any  foreign  prince,  state,  or  potentate,  as  a  soldier,  without  his  majesty's 
leave,  he  shall  be  guilty  of  felony  without  benefit  of  clergy;  and  offenses  committed  out 
of  the  realm  may  be  tried  in  any  county  in  England,  by  9  Geo.  2.  cap.  30.  sect.  2. 

VIII.  An  act  for  indemnifying  persons  who  have  been  guilty  of 
offenses  against  the  laws  made  for  securing  the  revenues  of  cus- 
toms and  excise,  and  for  enforcing  those  laws  for  the  future. 

By  9  Geo.  2.  cap.  35.  sect,  7.  Persons  then  liable  to  be  transported  for  any  of  the 
offenses  touching  the  said  revenues  mentioned  in  this  act,  committing  the  like  offenses 
after  claiming  the  benefit  of  this  act,  shall  be  adjudged  guilty  of  felony,  and  suffer  death 
without  benefit  of  clergy.  See  this  statute  at  large,  which  contains  many  other  pains 
and  penalties  concerning  the  revenues,  and  is  too  voluminous  to  be  all  inserted  here. 

IX.  An  act  of  10  Geo.  2.  cap.  32.  for  continuing  an  act  for  the  more 
effectual  punishing  wicked  and  evil  disposed  persons  going  armed 
in  disguise,  and  doing  injuries  and  violences  to  the  persons  and 
properties  of  the  king's  subjects,  and  for  the  more  speedy  bringing 
the  off'enders  to  justice,  &c. 

By  10  Geo.  2.  cap.  32.  ahd  24  Geo.  2.  cap.  5.  the  act  of  9  Geo.  1.  cap.  22.  called  the 
Waltham  Black  Act,  was  continued  for  some  time;  and  by  31  Geo.  2.  cap.  32.  it  was 
made  perpetual. — And  by  this  present  act.  sect.  6.  ifany  person  or  persons  shall  wilfully 
and  maliciously  set  on  fire,  or  cause  to  be  set  on  fire,  any  mine,  pit,  or  del[)h  of  coal,  or 
cannel  coal,  every  person  so  offending  being  thereof  lawfully  convicted,  shall  be  adjudged 
guilty  of  felony,  and  suffer  death  without  benefit  of  clergy.  And  this  sectibn  the  6th 
is  made  perpetual  by  31  Geo.  2.  cap.  42.' 

By  sect.  7.  Persons  convicted  a  second  time  of  hunting  and  taking  away  deer  out  of 
unincloscd  forests  or  chases,  are  to  be  transported  for  7  years;  and  if  such  person  or 
persons  return  from  transportation  within  that  lime,  to  be  adjudged  guilty  of  felony,  and 
suffer  death  without  benefit  of  clergy. 

By  sect.  9.  Persons  armed  coming  into  a  forest,  chace,  or  park,  with  an  intent  to 
steal  deer,  and  beating  and  wounding  the  keeper  or  keepers,  their  servants  or  assist- 
ants, to  suffer  the  like  pains  and  penalties,  as  in  sect.  7.  and  made  perpetual  by  31  Geo.  3. 
cap.  42. 


HISTORIA  PLACITORUM  CORONA.  713 

X.  An  act  of  11  Geo.  2.  cap.  22.  for  punishing  such  persons  as  shall 
do  injuries  and  violences  to  the  persons  or  properties  of  the  king's 
subjects  with  intent  to  hinder  the  exportation  of  corn. 

By  seel.  1.  Persons  usin^  violence  to  hinder  the  purchase  or  carriage  of  corn,  to  be 
imprisoned  and  publickly  whipt. 

By  sect,  2.  Persons  committing  the  like  offenses  a  second  time,  or  destroying  grana- 
ries, or  corn  therein,  or  in  sliips,  or  vessels,  shall  be  adjudged  guilty  of  fe  ony,  and  be 
transported;  and  if  they  return  from  transportation,  to  suffer  deatli  without  benefit  of 
clergy. 

XI.  An  act  of  11  Geo.  2.  cap.  26.  for  enforcing  the  execution  of  an 
act  of  the  9th  of  this  king,  intitled  an  act  for  laying  a  duty  upon 
the  retailers  of  spirituous  liquors,  and  for  licensing  the  retailers 
thereof. 

By  sect.  2.,  Rescuing  offenders  against  this  act,  or  assaulting  informers,  is  made 
felony,  and  transportation  for  seven  years. 

XII.  An  act  of  13  Geo.  2.  cap.  26.  for  the  more  effectual  preventing 
the  exportation  of  wool  fronn  Greul-Britain  ;  and  of  wool  and 

.    wool  manufactured  from  Ireland  to  foreign  parts. 

By  sect.  26.  Persons  opposing  officers  in  the  execution  of  their  duty  according  to  this 
act,  are  to  be  transported  for  seven  years,  and  if  they  return  within  that  time  to  suffer 
death  as  felons,  without  benefit  of  clergy. 

XIII.  Stealing  sheep  and  other  cattle. 

By  the  14  Geo.  2.  cap.  6.  Stealing  sheep  or  other  cattle  is  made  felony,  and  the  felon, 
his  aider  or  assistant,  to  suffer  death  without  benefit  of  clergy. —  But  it  becoming  doubt- 
ful to  what  sorts  of  cattle  the  said  act  was  meant  to  extend,  it  is  enacted  by  the  15 
Geo.  2.  cap.  34.  that  the  said  act  was  meant  and  intended,  and  shall  be  deemed  and 
taken  to  extend  to  any  bull,  cow,  ox,  steer,  bullock,  heifer,  calf,  and  lamb,  as  well  as 
sheep,  and  to  no  other  cattle  whatsoever. 

XIV.  Forging,  counterfeiting,  or  altering  bank  notes,  &c.  and  ser- 
vants of  the  bank  breaking  their  trust  to  the  company. 

By  15  Geo.  2.  cap.  13.  sect.  11.  If  any  person  or  persons  shall  forge,  counterfeit,  or 
alter  any  bank  note,  bank  bill  of  exchange,  dividend  Warrant,  or  any  bond  or  obligation, 
under  the  common  seal  of  the  said  company,  or  any  indorsement  thereon,  or  shall  offer 
or  dispose  of,  or  put  away  any  such  forged,  counterfeit,  or  altered  note,  bill,  dividend 
warrant,  bond,  or  obligation,  or  the  indorsement  thereon,  or  demand  the  money  therein 
contained,  or  pretended  to  be  due  thereon,  or  any  part  thereof,  of  the  said  company,  or 
any  their  officers  or  servants,  knowing  such  note,  bill,  dividend  warrant,  bond  or  obliga- 
tion, or  the  indorsement  thereon,  to  be  forged,  counterfeited,  or  altered,  with  intent  to 
defraud  the  said  company,  or  their  successors,  or  any  other  person  or  persons  whatso- 
ever;  every  person  or  persons  so  offending,  and  being  thereof  convicted  in  due  form  of 
law,  shall  be  deemed  guilty  of  felony,  and  shall  suffer  death  as  a  felon  without 
benefit  of  clergy.  f  714  J 

Sect.  12.  If  any  officer  or  servant  of  the  said  company,  being  intrusted  with 
any  note,  bill,  dividend  warrant,  bond,  deed,  or  any  security,  money,  or  other  effects  be- 
longing to  the  said  company,  or  having  any  bill,  dividend  warrant,  bond,  deed,  or  any 
security  or  effects  of  any  other  person  or  persons,  lodged  or  deposed  with  the  said  com- 
pany, or  with  him  as  an  officer  or  servant  of  the  said  company,  shall  secrete,  embezzle, 
or  run  away  with  any  such  note,  bill,  dividend-warrant,  bond,  deed,  security,  money,  or 
effects,  or  any  part  of  them  ;  every  officer  or  servant  so  offending,  and  being  thereof  con- 
victed in  due  form  of  law,  shall  be  deemed  guilty  of  felony,  and  shall  suffer  death  as  a 
felon,  without  benefit  of  clergy. 


714  HISTORIA  PLACITORUM  CORONiE. 

XV.  For  preventing  cloth  or  woollen  goods  remaining  on  the  rark 
or  tenters,  or  any  woollen  yarn  or  wool  left  out  to  dry,  from  being 
stolen  or  taken  away  in  the  night. 

By  15  Geo.  2.  cap.  27.  If  any  cloth  or  woollen  goods  on  the  tenters,  or  woollen  yfim, 
or  wool  left  out  to  dry,  shall  be  stolen  in  the  niglit,  any  justice,  on  complaint  made  .in 
ten  days  by  tlie  owner,  may  issue  his  warrant  to  any  peace  officer  in  the  day-time  to 
enter  into,  and  search  the  houses,  out-houses,  yards,  gardens,  or  other  places  belonging 
to  the  houses  of  every  person  wliotn  sueli  owner  shall,  upon  his  oath,  declare  to  such 
justice  he  suspects  to  have  stolen,  taken  away,  or  received  the  same ;  and  if  the  officer 
shall  find  any  such  goods,  which  from  the  oath  of  such  person  he  shall  have  reason  to 
sus[)ect  to  have  been  stolen,  he  shall  apprehend  the  person  in  whose  custody  or  posses- 
sion the  same  shall  be  found,  and  carry  him  before  a  justice;  and  if  he  shall  not  give  a 
satisfactory  account  how  lie  came  by  the  same,  or  in  a  convenient  time,  to  be  set  by  the 
justice,  produce  tlie  party  of  whom  he  had  the  same,  or  a  credible  witness  to  depose  on 
oath  his  properly  therein,  he  shall  be  convicted  of  stealing  such  goods;  and  shall  for  the 
first  otVcnse  forfeit  to  the  owner  treble  value;  and  in  default  of  payment  thereof  in  the 
time  appointed  by  such  justice,  he  shall  issue  his  warrant  to  levy  the  same  by  distress 
and  sale;  and  in  default  of  distress  shall  commit  him  to  the  common  gaol  where  he  shall 
be  apprehended,  for  three  months,  or  till  paid;  for  the  second  offence  treble  value,  and 
six  months  imprisonment;  for  the  third  offence  such  justice  shall  commit  him  till  the 
assizes;  and  if^lic  shall  be  there  convicted  in  like  manner,  he  shall  be  guilty  of  felony, 
and  transported  for  seven  years.  But  j)ersons  aggrieved  (except  on  the  third  conviction) 
may  ap[)eal  to  the  next  general  quarter  sessions,  whose  order  tJierein  shall  be  final.  But 
nevertheless,  this  shall  not  alter  any  former  law  in  force,  for  stealing  or  receiving  such 
cloth  or  goods,  except  where  the  proOf  is  laid  oh  the  ofiender  as  aforesaid. 

XVI.' For  preventing  the  coimferfeiting  of  the  current  coin  of  this 
kingdom,  and  uttering  and  paying  false  or  counterfeit  coin. 

By  15  Geo.  2.  cap.  28.  If  any  person  shall  wash,  gild,  or  colour  any  lawful  or  counter- 
feit silver  coin,  called  a  shilling  or  sixpence,  or  add  to  or  alter  the  impression,  or  any  part 
thereof,  on  either  side,  with  intent  to  make  such  shilling  or  sixpence  resemble 
I  715  I  a  guinea,  or  half  a  guinea;  or  shall  any  way  alter  or  colour  halfpennies  or 
farthings,  with  intent  to  make  them  resemble  a  shilling  or  sixpence,  he,  his 
counscller^i,  aiders  and  abettors,  shall  be  guilty  of  high  treason. 

Sect.  2.  If  any  person  shall  tender  in  payment  any  counterfeit  coin,  knowing  it  to  be 
so,  he  shall  for  the  first  ofl'ence  suffer  six  months  imprisonment,  and  find  sureties  for  "his 
good  behaviour  for  six  months  longer:  for  the  second  offence,  shall  suffer  two  years  im- 
prisoinnent,  and  find  sureties  for  two  years  more;  and  for  the  third  offi;nce,  shall  be 
guilty  of  felony  without  benefit  of  clergy. 

Sect.  3.  If  any  person  shall  tender  in  payment  any  counterfeit  money  (knowing  it  to 
be  so,)  and  shall  either  the  same  day,  or  within  ten  days  after,  knowingly  tender  other 
false  money  in  jjaynient,  or  at  the'time  of  such  tendering  have  more  in  his  custody,  he 
shall,  for  the  first  offence,  suffer  a  year's  imprisonment,  and  find  sureties  for  his  good  be- 
haviour for  two  years  more;  and  for  the  second  offence,  shall  be  guilty  of  felony  without 
benefit  of  clergy. 

Sect.  5.  9.  Persons  guilty  of  the  said  crimes  shall  be  tried  and  convicted  in  such  man- 
ner as  is  used  against  offenders  for  counterfeiting  the  coin;  and  the  clerk  of  assize,  or 
clerk  of  the  peace  where  the  first  conviction  was  had,  shall  certify  the  same  by  a  tran- 
script in  few  words,  containing^  the  tenor  of  such  conviction  (for  which  he  shall  have 
2s.  dd.  and  no  more,)  and  such  certificate  being  produced  in  court,  shall  be  sufficient 
proof  of  the  former  conviction.     Prosecution  to  be  in  six  months. 

Aote.  By  this  it  should  seem,  that  the  justices  of  the  peace  in  sessions  have  power  to 
try  such  offenders,  otherwise  this  direction  to  the  clerk  of  the  peace  to  certify  the  con- 
viction is  incongruous;  for  he  is  not  the  proper  person  to  certify  what  is  done  in  another 
court,  where  he  is  not  necessarily  supposed  to  be  present;  albeit  no  power  is  given  to 
the  sessions  by  any  express  words  in  this  statute  to  hear  and  determine  such  offenses. 

XVII.   For  the  more  easy  conviction  of  offenders  found  at  large  in 
,   Great  Britain,  after  they  have  been  ordered  lor  transportation. 

By  16  Geo.  2.  cap.  15.  If  any  felon  or  other  offender,  ordered  for  transportation,  or 
having  agreed  to  transport  himself  on  certain  conditions,  either  for  life  or  any  number 


HISTORIA  PLACITORUM  CORONiE.  715 

of  years,  shall  be  afterwards  at  large  in  any  part  of  Great  Britain,  without  some  lawful 
cause,  before  the  expiration  of  the  term,  he  shall  be  guilty  of  (ehmy  witliout  benefit  of 
clergy.  And  by  sect.  2.  of  16  Geo.  2.  cap.  15.  the  manner  of  trying  convicts  returnino^ 
from  transportation  is  to  be  according  to  6  Geo.  1.  cap.  23. 

XVIII.  For  punishment  of  persons  who  shall  aid  or  assist  prisoners 

to  attempt  to  escape  out  of  lawful  custody. 

By  16  Geo.  2.  cap.  31.  If  any  person  shall  assist  any  prisoner  to  at'empt  liis  escape 
from  any  gaol,  the  no  escape  be  actually  made,  if  such  prisoner  was  then  attainted,  or 
convicted  of  treason  or  felony  (except  petty  larceny,)  or  lawfully  committed  or  detained 
in  any  gaol  for  treason  or  felony  (except  petty  larceny)  expressed  in  the  warrant  of  com- 
mitment; he  shall  be  guilty  of  felony,  and  be  transported  for  seven  years  ;  and  if  such 
prisoner  was  then  convicted  of,  or  detained  in  gaol  for  petty  larceny,  or  any 
other  crime  not  being  treason  or  felony  expressed  in  the  warrant  of  commit-  f  716  "| 
rant,  or  was  then  in  gaol  for  debt  amounting  to  100/.  he  shall  be  guilty  of  a 
misdemeanour,  and  be  liable  to  fine  and  imprisonment. 

And  if  any  person  shall  convey,  or  cause  to  be  conveyed,  any  disguise,  instrument  or 
arras,  to  any  prisoner  in  gaol,  or  to  any  other  person  there  for  his  use,  witliout  consent  of 
the  keeper;  such  person,  altho  no  escape  or  attempt  be  actually  made,  shall  be  deemed 
to  have  delivered  such  disguise,  instrument,  or  arms,  with  an  intent  to  assist  such  pri- 
soner to  escape,  or  attempt  to  escape;  and' if  such  prisoner  was  then  attainted  or  convicted 
of  treason  or  felony  (except  petty  larceny,)  or  lawfully  detained  in  gaol  for  treason  or 
felony  (except  petty  larceny)  expressed  in  the  warrant  of  commitment — he  shall  be 
guilty  of  felony,  and  transported  for  seven  years;  —  but  if  the  prisoner  was  then  convicted 
or  detained  for  petty  larceny,  or  any  other  crime  not  being  treason  or  felony,  expressed 
in  the  warrant  of  commitment,  or  for  debt  amounting  to  lOOl.  he  shall  be  guilty  of  a 
misdemeanour,  and  liable  to  fine  and  imprisonment. 

And  if  any  person  shall  assist  any  prisoner  to  attempt  to  escape  from  any  constable, 
or  other  person  who  shall  have  the  lawful  charge  of  him  in  order  to  carry  him  to  gaol, 
by  virtue  of  a  warrant  of  commitment  for  treason  or  felony  (except  petty  larceny;)  or  if 
any  person  shall  assist  any  felon  to  attempt  to  escape  from  on  board  any  boat  or  vessel 
carrying  felons  for  transportation,  or  from  the  contractor  for  the  transportation  of  such 
felons,  or  his  agents,  he  shall  be  guilty  of  felony,  and  be  transported  for  seven  years. — 
All  prosecutions  on  this  act  to  be  commenced  within  a  year  after  the  offence  committed. 

XIX.  Holding  correspondence  with  the  sons  of  the  pretender. 

By  17  Geo.  2.  cap.  39.  Holding  correspondence  in  any  manner  with  any  of  the  pre- 
tender's sons,  or  with  any  person  employed  by  them,  or  remitting  any  money  for  tlieir, 
or  any  of  their  use,  knowing  the  said  money  to  be  for  such  use  or  service,  such  person 
so  offending  shall  be  guilty  of  high  treason,  and  shall  suffer  and  forfeit  as  in  cases  of 
high  treason.  And  any  of  the  pretender's  sons  attempting  to  land  in  Great  Britain  or 
Ireland,  to  stand  and  be  adjudged  to  be  attainted  of  high  treason. 

XX.  Stealing  of  linen,  fustian,  and  cotton  goods  and  wares,  in  build- 
ings, fields,  grounds,  and  other  places  used  for  printing,  whitening, 
bleaching,  or  drying  the  same. 

By  18  Geo.  2.  cap.  27.  Every  person  who  shall  by  day  or  night  feloniously  steal  any 
linen,  fustian,  callico,  or  cotton  cloth;  or  cloth  worked,  woven,  or  made  of  any  cotton  or 
linen  yarn  mixed;  or  any  thread,  linen,  or  cotton  yarn;  linen  or  cotton  tape,  incle,  fillet- 
ing, laces,  or  any  other  linen,  fustian  or  cotton  goods,  laid  to  be  printed,  wiiitened, 
bowked,  bleached,  or  dried,  to  the  value  oi  ten  shillings,  or  shall  knowingly  buy  or  re- 
ceive  any  such  wares  stolen,  or  who  shall  assist,  aid,  or  hire  another  to  commit  such 
offence,  shall  be  guilty  of  felony  without  benefit  of  clergy. — The  court  may  order  such 
offenders  to  be  transported  for  fourteen  years. — And  such  offenders  breaking  gaol,  or 
returning  from  transportation,  to  suflfer  death  without  benefit  of  clergy. 

XXI.  An  act  to  indemnify  persons  who  have  been  guilty  r717'| 
of  the  unlawful  importing,  landing,  or  running  of  pro- 
hibited, uncustomed,  or  other  goods  and  merchandize. 

By  18  Geo.  2.  cap.  28.  Offenders  guilty  of  the  offences  against  the  revenue  mentioned 
in  this  act,  aftd  liable  to  be  transported  for  the  same  before  this  act  was  made,  and  taking 


717  HISTORIA  PLACITORUM  CORONA. 

the  benefit  of  the  indemnification  therein,  and  afterwards  repeating  such  offences,  shall 
be  guilty  of  felony,  and  suffer  death  without  benefit  of  clergy. 

XXII.  Riotous  exportation  of  wool,  and  other  goods  prohibited  to 

be  exported. 

By  19  Geo.  2.  cap.  34.  which  by  the  11  Geo.  3.  cnj>.  51.  hath  continuance  to  Sept.'^, 
1778,  &.C.  If  any  persons  armed,  to  the  number  of  three  or  more,  shall  be  assembled  to 
assist  in  tlic  illegal  exportation  of  wool,  or  other  goods  prohibited  to  be  exported,  or  ia 
carrying  of  wool,  or  other  such  goods,  in  order  to  exportation ;  or  in  rescuing  the  sanie 
after  seizure;  or  in  rescuing  an  offender- herein,  or  preventing  his  being  apprehended;  or 
shall  be  aiding  in  any  of  the  premises;  or  if  any  person  shall  have  his  face  disguised 
when  passing  with  such  goods;  or  shall  forcibly  hinder  or  assault  any  officer  in  seizing 
the  same,  or  dangerously  wound  any  such,  in  attempting  to  go  on  board  any  vessel;  or 
shoot  at,  or  wound  him  when  on  board  in  execution  of  his  office,  he  shall  be  guilty  of 
felony  without  benefit  of  clergy. — There  are  several  other  felonies  in  this  act  agaii^t 
smugglers,  too  long  to  be  inserted  here;  so  see  the  act,  which  is  very  long. 

XXIII.  To  prevent  the  return  of  such  rebels  concerned  in  rebellion 
in  1745,  as  were  or  should  be  pardoned  on  condition  of  transpor- 
tation; and  to  hinder  their  going  into  the  enemy's  country. 

By  20  Geo.  2.  cap.  46.  Rebels  returning  from  transportation  without  licence,  or  volun- 
tarily going  into  France  or  Spain  to  suffi;r  death  without  benefit  of  clerjory  ;  and  aiders 
of  such  persons  returning,  to  sutfer  death  without  benefit  of  clergy. — And  subjects  hold- 
ing correspondence  with  rebels  going  into  France  or  Spain,  or  persons  employed  by  thein, 
to  suffijr  death  without  benefit  of  clergy. 

XXIV.  Quakers  oaths. 

By  27  Geo.  2.  cap.  46.  sect.  36.  In  all  cases  wherein  by  any  act  of  parliament  an  oath 
shall  be  allowed  or  required,  the  solemn  affirmation  of  Quakers  shall  be  allowed  instead 
of  such  oath,  and  that  altho  no  express  provision  be  made  for  that  purpose  in  such  act; 
and  if  any  person  shall  be  lawfully  convicted  of  wilful,  false,  and  corrupt  affirming,  or 
declaring  any  matter  or  thing,  which,  if  sworn  in  the  usual  form,  would  have  amounted 
to  wilful  and.corrupt  perjury,  he  shall  suffer  as  in  cases  of  perjury. 

XXV.  For  preventing  robberies   and  thefts   upon   any  navigable 
rivers,  ports  of  entry  or  discharge,  wharfs  and  keys  adjacent. 

By  the  24  Geo.  2.  cap.  45.     All  persons  \vho  shall  feloniously  steal  any  goods  of  the 

value    of  forty  shillings    in   any    ship,  boat,  or    vessel,  on    any  navigable 

r  718  1   river,  or  in   any  port  of  entry  or  discharge,  or  from  any  wharf  or  key,  or 

shall  be  present  and  aiding  therein,  sliall  be  excluded  from  the   benefit  of 

clergy. 

XXVI.  For  securing  mines  of  black  lead  from  theft  and  robbery. 

By  25  Geo.  2.  cap.  10,  Every  person  who  shall  unlawfully  break,  or  by  force  enter 
into,  any  mine  or  wad-hole  of  wad,  or  black  cawke,  commonly  called  black  lead ;  or  into 
any  pit,  shalt,  or  vein  thereof;  or  shall  unlawfully  take  and  carry  away  from  thence  any 
wad,  black  cawke,  or  black  lead;  or  shall  aid,  hire  or  command  any  person  to  commit 
any  the  said  offences,  shall  be  guilty  of  felony,  and  the  court  or  judge  may  order  him  to 
be  committed  to  prison,  or  the  house  of  correction  not  exceeding  one  year,  to  be  kept  to 
hard  labour,  and  to  be  publicly  whipt  by  the  common  hangman,  or  by  the  master  of  such 
liouse  of  correction,  at  the  times  and  places,  and  in  such  manner  as  the  court  shall  think 
proper;  or  he  may  be  transported  for  a  term  not  exceeding  seven  years;  and  if  he  shall 
voluntiirily  escape,  or  break  prison,  or  return  from  transportation  before  the  time,  he  shall 
be  guilty  of  felony  without  benefit  of  clergy:  and  if  any  person  shall  buy  or  receive  any 
such  wad,  knowing  the  same  to  be  unlawfully  taken  and  carried  away  as  aforesaid,  he 
shall  be  guilty  of  felony,  and  be  liable  to  all  the  penalties  inflicted  by  the  laws  on  persons 
knowingly  buying  or  receiving  stolen  goods. 

XXVII.  For  better  preventing  the  horrid  crime  of  murder. 

By  25  Geo.  2.  cap.  37.  sect.  9.     If  any  person,  shall,  by  force,  set  at  libarty  or  rescue 


HISTORIA  PLACITORUM  CORONA.  718 

or  attempt  to  set  at  liberty  or  rescue  any  person  out  of  prison,  committed  for,  or  found 
guilty  of  murder:  or  rescue,  or  attempt  to  rescue  any  such  person  goinfj  to,  or  during 
execution;  he  shall  be  guilty  of  felony  without  benefit  of  clergy. — And  by  sec.  10.  If, 
after  execution,  any  person  shall  by  lorce  rescue,  or  attempt  to  rescue  the  body,  he  shall 
be  guilty  of  felony,  and  transported  for  seven  years. 

XXVIII.  For  enforcing  the  laws  against  persons  who  shall  steal,  or 

detain  ship-wrecked  goods,  S,'c. 

By  26  Geo.  2.  cop.  19.  Persons  convicted  of  plundering,  stealing,  taking  away  or 
destroying  any  goods  or  merchandizes,  Sfc.  ship-wrecked,  or  of  obstructing  tlie  escape  of 
any  person  from  a  wreck,  or  of  putting  out  false  lights,  shall  be  deemed  guilty  of  felony 
without  benefit  of  clergy. — sec.  2.  Provided,  where  goods  of  small  value  shall  be  stolen 
without  any  circumstances  of  cruelty,  the  offender  may  be  indicted  for  petit  lar- 
ceny, and  shall  suffer  such  punishment  as  the  laws,  in  cases  of  petit  larceny,  do  enjoia 
or  require. 

XXIX.  For  the  better  preventing  clandestine  marriages. 

By  26  Geo.  2.  cap.  3.3.  sect.  8  Sf  9.  If  any  person  shall  solemnize  matrimony  in  any 
other  place  than  a  church,  or  public  chapel,  (unless  by  special  licence  from  the  Arch- 
bishop of  Canlerhiiry)  or  without  publication  of  bans,  or  licence  in  a  church  or  chapel; 
he  shall  (on  prosecution  in  three  years)  be  adjudged  guilty  of  felony,  and 
transported  for  fourteen  years;  and  the  marriage  shall  be  void. — But  by  sec.  I"  719  1 
18.  not  to  extend  to  Scotland,  nor  to  the  marriages  of  Quakers,  or  Jews. 

By  Sec.  16.  If  any  person  shall  knowingly  and  wilfully  insert,  or  cause  to  be  inserted 
in  the  register  book,  any  false  entry,  or  any  matter  or  thing  relating  to  any  marriage,  or 
falsely  make,  alter,  forge,  or  counterfeit  any  such  entry  in  the  register  or  any  marriage 
licence,  or  cause  the  same  to  be  done,  or  assent  thereunto,  or  ufter  as  true  any  such 
falsified  register,  or  copy  thereof,  or  any  such  forged  licence,  he  shall  be  guilty  of  felony 
without  benefit  of  clergy. 

XXX.  Threatening  letters. 

By  27  Geo.  2.  cap.  15.  If  any  person  shall  knowingly  send  any  letter,  without  any 
name  subscribed  thereto,  or  signed  with  a  fictitious  naiue,  demanding  money  or  other 
valuable  thing;  or  threatening  to  kill  or  murder  any  of  his  Majesty's  subjects,  or  to 
burn  their  out-houses,  barns,  stacks  of  corn  or  grain,  hay  or  straw;  though  no  money, 
or  venison,  or  other  valuable  thing  be  demanded  by  such  letter;  ox  shall  rescue  any 
person  in  custody  for  such  offence,  he  shall  be  guilty  of  felony  without  benefit  of 
clergy. 

XXXIi   For  preventing  the  stealing,  buying  and  receiving  stolen 
lead,  iron,  copper,  brass,  bell-metal  and  solder. 

By  29  Geo.  2.  cap.  .30.  Every  person  who  shall  buy  or  receive  any  of  the  said  mate- 
rials, knowing  the  same  to  be  unlawfully  come  by,  or  shall  privately  buy  or  receive  any 
of  tiie  said  materials  (stolen)  by  suffering  any  door,  window,  or  shutter,  to  be  lefl 
opened  and  unfastened,  between  sun-setting  and  .'<un-risifig,  for  that  purpose;  or  shall 
buy  or  receive  the  same,  or  any  of  them,  at  any  time,  in  any  clandestine  manner,  from 
any  person  or  persons  whatsoever,  shall,  being  convicted  thereof  by  due  course  of  law, 
although  the  principal  telon  or  felons  has  not  nor  have  been  convicted  of  stealing  the 
same,  be  transported  for  fourteen  years. 

XXXII.  For  punishment  of  persons  who  shall  attain,  or  attempt  to 
attain,  possession  of  goods  or  money  by  false  or  untrue  pretences. 

By  30  Geo.  2.  cap.  24.  All  persons  who  knowingly  and  designedly,  by  false  pretence 
or  pretences,  shall  obtain  from  any  person  money,  goods,  wares  or  merchandizes,  with 
intent  to  cheat  or  defraud  any  person  of  the  same;  or  shall  knowingly  send  or  deliver 
any  letter  or  writing  with,  or  without  a  name  subscribed  thereto,  or  signed  with  a  fictitious 
name,  letter  or  letters,  threatening  to  accuse  any  person  of  any  crime  punishable  by  law 
with  death,  transportation,  pillory,  or  any  other  infamous  punishment,  with  intent  to  ex- 
tort from  him  any  money,  or  other  goods,  sliall  be  deemed  offenders  against  law  and  the 
public  peace;  and  the  court,  before  whom  any  such  offender  shall  be  tried,  shall,  on  con- 


719  HISTORIA  PLACITORUM  CORONiE. 

victinn,  orHer  him  to  be  fined  and  imprisoned,  or   to  be   put  in  the  pillory,  or  publicly 
whipped,  or  to  be  transported  for  seven  years. 

XXXIII.  For  preventing  frauds  and  abuses  attending  payments  of 

seamen's  wages,  ^'C. 

By  31  Geo.  2.  cap.  10.  Whosoever  willingly  and  knowingly  shall  personate  or  falsely 
assunio,  or  i>rocurc  any  other  to  personate  or  falsely  assume,  the  name  or 
r  720  "1  character  of  any  officer,  seaman,  or  other  person  intitled,  or  sup|>osed  to 
be  intitled  to  any  wages,  pay,  or  other  allowances  of  money,  or  prize- 
money,  for  the  service  done  on  board  of  any  of  his  Majesty's  ships  or  vessels;  or  wil- 
lingly or  knowingly  shall  personate  or  falsely  assume  the  name  or  character  of  the 
executor  or  administrator,  wife,  relation,  or  creditor  of  any  such  officer,  or  seaman,  or 
other  person,  in  order  to  receive  any  wages,  pay,  or  other  allowances  of  money,  or  prize- 
money  as  aforesaid,  or  shall  forge  or  counterfeit,  or  procure  to  be  forged,  or  counter- 
feited (or  utter  or  publish  as  true,  knowing  the  same  to  be  false,  forged  or  counterfeited, 
9  Geo.  3.  cap.  30.  see.  6.)  any  letter  of  attorney,  bill,  ticket,  certificate,  assignment,  last 
will,  or  any  other  power  of  authority,  in  order  to  receive  any  such  wages,  pay,  or  other 
allowances  of  money,  or  prize-money  as  aforesaid;  or  shall  willingly  and  knowingly  take 
a  false  oath,  or  procure  any  other  person  to  take  a  false  oath  to  obtain  the  probate  of  any 
will,  or  letter  of  administration,  in  order  to  receive  the  payment  of  any  vvuges,  pay,  or 
other  allowances  of  money,  or  prize-money  due,  or  that  were  supposed  to  be  due  to  any 
Buch  officer,  seaman,  or  other  persons  as  aforesaid,  who  has  really  served,  or  was  sup- 
posed to  have  served  on  board  of  any  of  his  Majesty's-sliips  or  vessels;  every  such  per- 
son so  offending  shall  be  guilty  of  felony  without  benefit  of  clergy. 

XXXIV.  For  preventing  frauds  and  abuses  in  marking  or  stamping 

gold  or  silver  plate. 

By  31  Geo.  2.  cap.  32.  sect.  15.  If  any  person  shall  cast,  forge  or  counterfeit,  or  cause 
or  procure  to  be  cast,  forged  or  counterfeited,  the  mark  or  stamp  used  for  making  plate 
in  pursuance  of  the  act  of  12  Geo.  2.  cap.  26  <Sfr.  by  the  goldsmith's  company,  &c.  or 
mark  plate,  «Slc  with  a  forged  or  counterfeit  mark  or  stamp,  or  shall  transpose  the 
mark  impressed  from  one  piece  of  wrought  plate  to  another;  or  shall  sell  or  export 
plate  with  a  forged,  counterfeit,  or  transposed  mark,  or  shall  wilfully  and  knowingly 
have  any  such  mark  or  stamp  in  liis  possession  ;  he  shall  be  guilty  of  felony  without 
benefit  of  clergy.  But  this  is  repealed,  and  made  transportation  for  fourteen  jears  by 
13  Geo.  3.  cap.  59. 

Felonies"  exacted  ix  the  time  of  Kixg  George  III. 

I.  To  prevent  the  committing  of  thefts  and  frauds  by  persons  navi- 

gating bum-boats  and  other  boats  upon  the  river  Thames. 

By  2  Geo.  3.  cap.  28.  Persons  convicted  of  knowingly  buying,  or  receiving  stolen 
goods  from  vessels  in  the  river  Thames,  or  of  privately  buying  or  receiving,  at  any  time, 
anv  such  goods  clandestine!}',  or  by  suffering  any  door,  window,  or  shutter  at  night,  to 
be  left  open  or  unfastened  for  that  purpose,  shall  be  transported  for  fourteen  years;  and 
persons  convicted  of  cutting  or  spoiling  any  cordage,  cables,  buoys,  buoy-rope,  headfast, 
or  other  fasts,  or  ropes  of  vessels  at  anchor  or  moorings  in  the  river;  and  per- 
[  721  I  sons  who  shall  be  aiding  or  assisting  therein,  with  an  intent  to  steal  the  same, 
shall  be  transported  for  seven  years. 

II.  For  preventing  fraudsin  relation  to  the  postage  of  letters. 

By  4  Geo.  3.  cap.  24.  sect.  8.  If  any  person  shall  counterfeit  the  hand-writing  of  any 
person  whatsoever  in  the  superscription  of  any  letter,  or  packet,  to  be  sent  by  the  post, 
in  order  to  avoid  payment  of  tiie  duty  of  postage;  every  person  so  offending  shall  be  deemed 
guilty  of  felony,  and  shall  be  transported  for  seven  years. 

III.  For  establishing  a  manufactory  of  cambricks  and  lawns,  ^-c. 

By  4  Geo.  3.  cap.  37.  sect.  15.  ,  If  any  person  shall  counterfeit  the  common  seal  of  the 
corporation,  established  by  this  act,  or  shall  forge,  counterfeit,  or  alter  any  deed,  bill, 


HISTORIA  PLACITORUM  CORON.E.  721 

bond,  or  obligation  under  the  common  seal  of  the  said  corporation,  or  shall  offer  to  dis- 
pose of,  or  pay  away  any  such  forged,  counterleited,  or  altered  bill,  bond,  or  obligation, 
knowing  the  same  to  be  such;  or  shall  demand  any  money  therein  mentioned,  or  pre. 
tended  to  be  due  thereon,  or  on  any  part  thereof,  of  and  from  the  said  corporation,  or  any 
members,  officers,  or  servants  thereof,  knowing  such  bill,  bond,  or  obligation  to  be  forged, 
counterfeited  or  altered,  with  intent  to  defraud  the  same  corporation,  or  their  successors, 
or  any  other  person  or  persons  whomsoever,  every  person  so  offending,  and  being  con- 
victed thereof,  shall  be  judged  guilty  of  felony,  and  shall  suffer  as  in  cases  of  felony, 
without  benefit  of  clergy. 

And  by  sect.  16.  If  any  person  shall,  by  day  or  night,  break  into  any  house,  shop, 
cellar,  vault,  or  other  place  or  building,  or  by  force  enter  into  any  house,  shop,  cellar,  or 
vault,  or  other  place  or  building  with  intent  to  steal,  cut,  or  destroy  any  linen  yarn  be- 
longing to  any  linen  manufactory,  or  the  looms,  tools,  or  implements  used  therein  ;  or 
shall  williilly  or  maliciuusly  cut  in  pieces  or  destroy  any  such  goods,  when  exposed 
either  to  bleach  or  dry,  he  shall  be  guilty  of  felony  without  benefit  of  clergy. 

IV.  For  preservation  offish  in  fish-ponds,  and  conies  in  warrens,  &c. 

By  5  Geo.  3.  cap.  14.  sect.  1.  In  case  any  person  or  persons  shall  enter  into  any  park 
or  paddock  fenced  in  and  inclosed,  or  into  any  garden,  orchard,  or  yard  adjoining,  or  be- 
longing to  any  dwelling-house,  in  or  through  which  park  or  other  premises  any  river  or 
stream  shall  run  or  be,  or  wherein  shall  be  any  river,  stream,  pond,  pool,  mo;it,  stew,  or 
other  water,  and  by  any  ways  or  means,  or  device,  whatsoever,  shall  steal,  take,  kill,  or 
destroy  any  fish,  bred,  kept,  or  preserved,  in  any  such  river  or  stream,  pond,  pools  moat, 
stew,  or  other  water  aforesaid,  without  the  consent  of  the  owner  or  owners  thereof;  or 
shall  be  aiding  and  assisting  in  stealing,  taking,  killing,  or  destroying  any  such  fish  as 
aforesaid ;  or  shall  receive  or  buy  any  such  fish,  knowing  the  same  to  be  so  stolen  or 
taken  as  aforesaid;  and  being  thereof  indicted  within  six  calendar  months  next  after  such 
qffcnse  or  offenses  shall  have  been  committed,  before  any  judge,  or  justices 
of  gaol-delivery  for  the  county  wherein  such  park  or  paddock,  garden,  orcliard,  V  722  1 
or  yard  shall  be,  and  shall  on  such  indictment  be  by  verdict,  or  his  or  their 
own  confession  or  confessions,  convicted  of  any  such  offense  or  offenses  as  aforesaid;  the 
person  or  persons  so  convicted  shall  be  transported  for  seven  years. 

And  by  sect.  G.  If  any  person  or  persons  shall  wilfully  and  wrongfully,  in  the  night- 
time, enter  into  any  warren  or  ground,  lawfully  used  or  kept  for  the  breeding  or  keeping 
of  conies,  altho  the  same  be  not  inclosed,  and  shall  then  and  there  wilfully  and  wrontr. 
fully  take  or  kill,  in  the  night-time,  any  coney  or  conies,  against  the  will  of  the  owner 
or  occupier  thereof,  or  shall  be  aiding  and  assisting  therein,  and  shall  be  convicted  of  the 
same  before  any  of  his  majesty's  justices  of  oyer  and  terminer  or  gaol-delivery,  for  the 
county  whereof  such  offensew  offenses  shall  i)e  committed,  every  such  person  and  per- 
sons so  offending,  and  being  thereof  lawfully  convicted  in  manner  aforesaid -shall  and 
may  be  transported  for  seven  years,  or  suffer  such  other  punishment,  by  whipping,  fine, 
or  imprisonment,  as  the  court,  before  whom  such  person  or  persons  shall  be  tried,  shall 
in  their  discretion  award  and  direct. 

By  sect.  7.  No  person  who  shall  be  convicted  of  any  offense  against  this  act,  shall  be 
liable  to  be  convicted  for  any  such  offense  under  any  former  act  or  acts,  law  or  laws, 
now  in  force. 

V.  For  preventing  unlawful  combinations  of  workmen  employed  in 

the  silk  manufacture. 

By  6  Geo.  3.  cap.  28.  sect.  15.  If  any  person  or  persons  shall,  by  day  or  by  night, 
break  into  any  house  or  shop,  or  enter  by  force  into  any  house  or  shop,  with  intent  to 
cut  or  destroy  any  velvet,  wrought  silk,  or  silk  mixed  with  any  other  materials,  or  other 
silk  manufacture,  in  tlie  loom,  or  any  warp,  or  shute,  tools,  tackle,  or  utensils;  or  shall 
wilfully  and  maliciously  cut  or  destroy  any  velvet,  wrought  silk,  or  silk  mixed  with  any 
other  materials,  or  other  silk  manufacture  in  the  loom,  or  any  warp  or  shute,  tools,  tackle, 
or  utensils,  prepared  or  employed  in,  or  for  the  making  thereof;  or  shall  wilfully  and 
maliciously  break  or  dpstroy  any  tools,  tackle,  or  utensils,  use-d  in  or  for  the  weaving  or 
making  any  such  velvet,  wrought  silks,  or  silks  mixed  with  any  other  materials,  or  other 
silk  goods,  or  silk  manufactures,  not  having  th^  qonsent  of  the  owners  so  to  do;  every 
such  offender,  being  thereof  lawfully  convicted,  shall  be  adjudged  guilty  of  felony,  and 
shall  suffer  death  without  benefit  of  clergy. 


722  HISTORIA  PLACITORUM  CORONA. 

VI.  For  the  encouraging  the  cuUivation,  and  for  the  better  preser- 

vation of  trees,  roots,  plants,  and  shrubs. 

By  6  Geo.  3.  cap.  36.  All  and  every  person  and  persons  who  shall,  in  the  night-time, 
lop,  top,  cut  down,  break,  throw  down,  bark,  burn,  or  otherwise  spoil  or  destroy,  or  carry 
away  any  oak,  beach,  ash,  elm,  fir,  chesnut,  or  asj)  timber-tree,  or  other  tree  or  trees 
standing  for  timber,  or  likely  to  become  timber,  without  the   consent   of  the   owner   or 

owners  thereof  first  had  and  obained;  or  shall,  in  the  night-time,  pluck  up, 
I    723    I   dig  up,   break,  spoil,  or  destroy,  or  carry  away,  any  root,  shrub,  or  plaqt, 

roots,  shrubs,  or  plants  of  the  '.•alue  of  five  shillings,  and  which  shall  be  grow- 
ing,  standing,  or  being  in  the  garden,  or  under  nursery-ground,  or  other  inclosed  ground, 
of  any  person  or  persons  whomsoever,  shall  be  deemed  and  construed  to  be  guilty  of 
felony;  and  every  such  person  or  persons  shall  be  subject  and  liable  to  the  like  pains  and 
penalties  as  in  cases  of  feloTiy;  and  the  court  by  and  before  whom  such  person  or  persohs 
shall  be  tried,  shall,  and  Jiereby  have  authority  to  transport  such  person  of  persons  for 
the  space  of  seven  years:  and  all  and  every  person  and  persons  who  shall  be  wilfully 
aiding,  abetting,  or  assisting  in  such  cutting  down,  breaking,  throwing  down,  barking, 
burning,  or  otherwise  spoiling  or  destroying,  or  carrying  away  any  such  oak,  beach,  ash, 
elm,  fir,  cliesnui,  or  asp  tiinbcr-tree,  or  other  tree  or  trees  standing  for  timber,  or  likely 
to  become  timber,  ns  aforesaid;  or  in  such  plucking  up.  digging  up,  cutting,  breaking, 
spoihng,  or  destroying,  or  carrying  away  such  root,  shrub  or  plant,  roots,  shrubs  or  plants 
as  aforesaid,  of  the  value  aforesaid ;  or  who  shall  buy  or  receive  such  root,  shrub  or  plant, 
roots,  shrubs  or  plants,  of  the  value  aforesaid,  knowing  (he  same  to  be  stolen,  shall  be 
subject  and  liable  to  the  same  punishment,  as  if  he,  she,  or  they  had  stolen  the  same; 
any  law  to  the  contrary  in  auy.wise  .notwithstanding. 

VII.  For  the  better  preservation  of  timber-trees,  and  of  woods  and 
undcr-woods  ;  and  lor  the  further  preservation  of  roots,  shrubs,  and 
plants. 

By  6  Geo.  3.  cap.  48.  Every  person  who  shall  wilfully  cut  or  break  down,  bark,  burn, 
pluck  up,  lop,  top,  crop,  or  otiierwise  delace,  damage,  «!poil,  or  destroy,  or  carry  away 
any  timber-tree  or  trees,  or  trees  likely  to  become  timber,  or  any  pari  thereof,  or  the 
lops  or  tops  thereot',  without  the  consent  of  the  owner  (or  in  any  of  his  majesty's  forests 
or  chases,  witiiout  the  consent  of  the  surveyor,  or  his  deputy,  or  persons  intrusted  wiih 
the  care  thereof,)  and  shall  be  thereof  convicted  on  the  eath  of  one  witness,  belore  one 
justice,  shall,  for  the  first  oflcnse,  forfeit  not  exceeding  20/.  together  wi  h  the  charges 
previous  to  and  attending  such  conviction,  to  be  ascertained  by  such  justice;  and  on 
non-payment  thereof',  to  be  committed  by  such  justice  to  the  Qominon  gaol,  for  any  time 
not  exceeding  twelve  months,  nor  less  than  six,  or  until^ie  penalty  and  charges  shall 
be  paid:  for  the  second  ofiVnse  to  forfeit  not  exceeding  30Z.  together  with  the  charges  as 
aforesaid;  and  for  non-payment,  to  be  committed  as  aloresaid,  for  any  time  not  exceeding 
eighteen  months,  nor  less  than  twelve,  or  until  the  penally  and  charges  shall  be  paid ; 
and  if  any  person  shall  be  guilty  of  a  like  cficncc,  a  third  time,  and  shall  thereof  be  con- 
victed in  like  mar}ner,*  he  shall  be  deemed  guilty  of  felony,  and  the  court 
r  724  ~\  before  whom  he  shall  be  tried,  shall  have  authority  to  transport  him  for  seven 
years.  And  all  oak,  beech,  chesnut,  walnut,  ash,  elm,  cedar,  fir,  asp,  lime, 
sycamore,  and  birch  trees,  [and  also  poplar,  alder,  larch,  niapple,  and  hornbeam,  by 
13  Geo.  3.  cap.  33.]  shall  be  deemed  timber  trees. 

And  by  sect.  3.  Every  person  who  shall  pluck  up,  spoil  or  destroy,  or  take  or  carry 
away  any  root,  shrub  or  plant,  roots,  shrubs  or  plants,  out  of  the  fields,  nurseries,  gar- 
dens, or  garden-ground,  or  other  cultivated  lands,  of  any  person,  witiiout  the  consent  of 
t^ie  owner,  and  shall  be  thereof  convicted  upon  the  oath  of  owe  witness  before  one  jus- 
tice,^  shall,  for  the  first  offense,  forfeit  not  exceeding  40s.  together  with  the  charges  pre- 

*  Here  scerhs  to  be  a  mistake.  Being  convicted  in  like  manner,  iniplies  a  sumn^ary 
conviction,  as  before  directed,  before  one  justice;  but  it  cannot  be  intended,  that  a  justice 
shall,  in  this  manner,  have  power  to  transport  a  man.  But  the  word  court  alterwards, 
before  which  he  shall  be  convicted  (that  is  court  of  assize,  or  sessions,  as  it  seemeth  by 
tlie  following  words  of  the  act,)  implies  a  legal  trial  by  a  jury;  and  therefore  these  words 
[in  like  manner]  ought  to  be  omitted. . 

t  The  words  in  the  printed  act  arc  [and  shall  be  thereof  convicted  upon  the  oath  of 
one  or  more  credible  witness  or  witnesses,  before  any  one  or  more  justice  or  justices  of 
tlie  peace].     It  is  probable  by  mistake  of  the  printer  of  this  act. 


HISTORIA  PLACITORUM  CORON/E.  724 

vious  to,  and  attending  such  conviction,  to  be  ascertained  'by  such  justice;  and  if  not 
paid  immediately,  the  said  justice  shall  commit  him  to  the  house  of"  correction  for  one 
moiitli,  to  be  kept  to  hard  labour,  and  once  whipped  there:  for  the  second  offense,  shall 
forfeit  not  exceeding  51.  together  with  the  charges  as  aforesaid;  and  if  not  paid  imme- 
diately, then  to  be  committed  to  the  house  of  correction  for  three  months,  and  to  be  kept 
to  hard  labour,  and  whipped  there  once  in  every  of  the  said  months;  and  if  any  person 
shall  a  third  time  commit  the  like  offense,  and  shall  be  thereof  convicted,  he  shall  be 
deemed  guilty  of  felony,  and  the  court  before  whom  he  shall  be  tried,  shall  have  authority 
to  transport  him  for  seven  years. 

VIII.  Stealing  bills  or  other  securities  for  money  out  of  letters. 

By  7  Geo,  3.  cap.  50.  sect.  1.  If  any  person  employed  in  the  business  of  the  post- 
ofBce,  shall  secrete,  imbezzle,  or  destroy  any  letter  or  packet,  containing  any  bank  note, 
bank  post  bill,  bill  of  exchange,  exchequer  bill,  South-Sea  or  East  India  bond,  dividend 
warrant  of  the  bank,  or  other  company,  navy,  or  victualling,  or  transport  bill,  ordnance 
debenture,  seaman's  ticket,  state  lottery  ticket,  bank  receipt  for  payment  on  any  loan, 
note  or  assignment  of  stock  in  the  funds,  letter  of  attorney  for  receiving  annuities  or 
dividends,  or  for  selling  stock  in  the  funds,  or  belonging  to  any  company,  American  pro- 
vincial bill  of  credit,  goldsmith's  or  banker's  note  for  payment  of  money,  or  other  bond 
or  warrant,  draught,  bill,  or  promissory  note  for  payment  of  money,  or  shall  steal  and 
take  the  same  out  of  any  letter  or  packet,  he  shall  be  guilty  of  felony,  and  suffer  death 
without  benefit  of  clergy.     [And  see  for  the  like  the  act  of  5  Geo.  3.  cap.  25.  sect.  17] 

By  sect.  2.  If  any  person  shall  rob  any  mail  of  any  letter,  packet  or  bag,  or  shall 
steal  and  take  any  letter  or  packet  from  out  of  any  mail  or  bag  or  out  of  any  post-ofRce, 
or  house,  or  place,  for  the  receipt  of  delivery  of  letters,  altho  tlic  same  shall  not  appca,r 
to  be  a  taking  from  the  person,  or  on  the  highway,  or  in  a  dwelling-house,  or  out-house 
belonging  to  a  dwelling-house;  and  altho  it  shall  not  appear  that  any  person 
was  put  in  fear,  he  shall  nevertheless  be  guilty  of  felony,  and  shall  suffer  death  I"  725  J 
without  benefit  of  clergy. 

By  sect.  3.  If  any  person  employed  in  any  business  of  the  post-office,  who  shall  take 
any  letter  or  packet  to  be  forwarded  by  the  post,  and  receive  any  money  therewith  for 
the  postage,  shall  burn  or  destroy  any  such  letter  or  pikckel;  or  shall  advance  the  rate  of 
postage  upon  any  letter  or  packet,  and  not  duly  account  for  the  money  by  him  received 
for  such  advanced  postage,  he  shall  be  deemed  guilty  of  felony. 

IX.  For  the  more  speedy  and  effectual  transportation  of  offenders. 

By  8  Geo.  3.  cap.  15.  Where  his  majesty's  mercy  shall  be  extended  to  any  offender 
upon  condition  of  transportation,  and  the  same  be  signified  to  the  judge,  by  one  of  the 
principal  secretaries  of  state,  such  judge  may  make  order  for  the  immediate  transporta- 
tion of  such  offender;  who  shall  thereupon  be  transferred  and  made  over  to  the  con- 
tractor, ^c.  and  if  such  offender  be  afterwards  seen  at  large  in  Great  Britain,  without 
lawful  cause,  before  the  expiration  of  the  term  for  which  he  was  transpor^d,  he  shall 
suffer  death  without  benefit  of  clergy. 

X.  For  punishment  of  persons  destroying  mills,  mines,  ^'c. 

By  9  Geo.  3.  cap.  29.  sect.  1.  If  any  person  or  persons  riotously  and  tumultuously 
assembled,  to  the  disturbance  of  the  public  peace,  shall  unlawfully  and  with  force  de- 
molish or  pull  down,  or  begin  to  demolish  or  pull  down  any  wind  saw-mill,  or  other 
wind-mill,  or  any  water-mill,  or  other  mill,  or  any  of  the  works  thereto  belonging,  every 
such  person  shall  be  guilty  of  felony  without  benefit  of  clergy. 

And  by  sect.  2.  If  any  person  shall  wilfully  or  maliciously  burn,  or  Set  fire  to  any 
such  mill;  he  shall  in  like  manner  be  guilty  of  felony  without  benefit  of  clergy. 

And  by  sect.  3.  If  any  person  sTiall  wilfully  or  maliciously  set  fire  to,  burn,  demolish, 
pull  down,  or  otherwise  destroy  or  damage  any  fire  engine,  or  other  engine  erected  for 
draining  water  from  collieries,  or  coal  mines,  or  for  drawing  coals  out  of  the  same;  or 
for  draining  water  from  any  mine  of  lead,  tin,  copper,  or  other  mineral ;  or  any 
bridge,  waggon-way  or  trunk,  erected  for  conveying  coals  from  any  colliery  or  coal- 
mine, or  staith  for  depositing  the  same;  or  any  bridge  or  waggon-way  erected  for 
conveying  lead,  tin,  copper,, or  other  mineral  from  any  such  mine,  or  shall  cause  or 
procure  the  same  to  be  done,  he  shall  be  guilty  of  felony,  and  transported  for  seven 
years. 

VOL.   I. — 59 


725  HISTORIA  PLACITORUM  CORONA. 

XI.  Forgery  in  relation  to  seaman's  wages. 

By  9  Geo.  3.  cap.  30.  sect.  6.  If  any  person  shall  utter  or  publisli  as  true,  any  false, 
forged  or  counterfeited  letter  of  attorney,  bill,  ticket,  certificate,  assignment,  last  will, 
or  any  other  power  or  authority  whatsoever,  in  order  to  receive  any  wages,  pay,  or  other 
allowance^  of  money,  for  prize-money,  due,  or  supposed  to  be  due  to  any  officer  or  sea- 
man, or  otlicr  person,  who  has  really  served,  or  was  supposed  to  have  served,  or  who 
shall  hereafter  serve,  or  be  supposed  to  have  served,  on  board  of  any  ship  or  vessel  of  his 
Majesty,  his  heirs  or  successors,  with  intent  to  defraud  any  person,  knowing  the  same 
to  be  false,  forged  or  counterlcitcd  ;  then  every  sucli  perscn,  being  thereof 
r  726  1  lawfully  convicted,  shall  be  deemed  guilty  of  felony,  and  shall  suti'er  death 
without  bene6t  of  clergy. 

XII.  For  making  the  receiving  of  stolen  jewels,  and  gold  and  silver 
plate,  in  the  case  of  burglary  and  highway  robbery,  more  penal. 

By  10  Gto.  3.  cap.  48.  Every  person  who  shall  buy  or  receive  any  stolen  jewel  or 
jewels,  or  any  stolen  gold  or  silver  plate,  watch  or  watches,  knowing  the  same  to  have 
been  stolen,  shall,  in  all  cases  where  such  jewel  or  jewels,  or  gold  or  silver  plate  shall 
have  been  feloniously  stolen,  accompanied  with  a  burglary  actually  committed  in  the 
stealing  the  same,  or  shall  have  been  feloniously  taken  by  a  robbery  on  the  highway, 
shall  be  tri  iblc  as  well  before  conviction  of  the  principal  felon  in  such  felony  and  bur- 
glary or  robbery,  wliether,  he  sb.all  be  in  or  out  of  custody,  as  alter  his  conviction.  And 
if  any  person  so  buying  or  receiving  such  jewel  or  jewels,  or  gold  or  silver  plate,  shall 
be  convicted  thereof,  he  shall  be  guilty  of  felony,  and  transported  for  tourteen  years. 

XIII.  For  preventing  the  counterfeiting  the  copper  coin  of  this  realm. 

By  11  Geo.  3.  cap.  40.  sect.  1.  Jf  any  person  or  persons  shall  make,  coin,  or  counter- 
feit, any  of  the  copper  monies  of  this  realm,  commonly  called  an  halfpenny,  or  af'irthing^ 
such  person  or  persons  offending  therein,  and  his,  her,  or  their  counsellors,  aiddrs,  or 
abetters  and  procurers,  shall  be  adjudged  guilty  of  felony  [but  within  clergy.] 

By  sect.  2,  If  any  person  or  persons  shall  buy,  sell,  take,  receive  pay,  or  put  off  any 
counterfeit  copper  money,  not  melted  down,  or  cut  in  pieces,  at,  or  for  a  less  rate  or  value 
than  the  same,  by  its  denomination,  doth  or  shall  import,  or  was  counterfeited  for, 'every 
such  person  and  persons  shall  be  adjudged  guilty  of  felony  [but  within  clergy.] 

XIV.  For  proceeding  against  persons  standing  mute  on  their  arraign- 

ment for  felony  or  piracy. 

By  12  Geo,  3.  cop.  20,  If  any  person  being  arraigned  on  any  indictment  or  appeal 
for  tblony,  or  on  any  indictment  for  piracy,  shall,  upon  such  arraignment  stand  mule,  or 
will  not  answer  directly  to  the  felony  or  piracy,  such  person  so  standing  mute,  as  afore- 
said, shall  be  convicted  of  the  felony  or  piracy  charged  ip  such  indictment  or  appeal; 
and  the  co^t,  before  whom  he  shall  be  arraigned,  shall  thereupon  award  judgment  and 
execution  against  such  person,  in  the  same  manner  as  if  such  person  had  been  convicted 
by  verdict,  or  confession  of  the  felony,  or  piracy  charged  in  such  indictment  or  appeal; 
and  sue!)  judgment  shall  have  all  the  same  consequences  in  every  respect,  as  if  such  per- 
son had  been  convicted  by  verdict  or  confession  of  such  felony  or  piracy,  and  judgment 
had  been  thereupon  awarded. 

XV.  For  preserving   his   JNIajesty's  dock-yards,  magazines,  ships, 

ammunition,  and  stores. 

By  12  Geo.  3.  cap.  24.  If  any  person  shall,  either  within  this  realm,  or  any  of  the 
islands,  countries,  forts  or  places  thereunto  belonging,  wilfully  and  maliciously  set  on 
fire,  or  burn,  or  otherwise  destroy,  any  of  his  Majesty's  ships  or  vessels  of  war,  whether 

the  same  be  on  tloat,  or  building  in  any  of  his  Majesty's  dock-yards,  or  build- 
I    727    I  i'lgi  or  repairing  by  contract  in  any  private  yard ;  or  any  of  his  Majesty's 

arsenals,  magazines,  dock-yards,  rope-yards,  victualling-offices,  or  any  of  the 
buildings  erected  therein,  or  belonging  thereto;  or  any  timber  or  materials  there  placed, 
for  building,  repairing,  or  fitting  out  of  ships  or  vessels  ;  or  any  of  his  Majesty's  military, 
naval,  or  victualling  stores,  or  other  ammunition  of  war;  or  any  place  where  any  such 
military,  naval,  or  victualling  stores,  or  other  ammunition  of  war  shall  be  kept;  he,  and 
also  his  aiders  and  abetters,  shall  be  guilty  of  felony,  without  benefit  of  clergy. 


HISTORIA  PLACITORUM  CORON^E.  707 

XVI.  For  the  preventing  of  frauds  in  the  stamp  duties  upon  vellum, 

parchment,  paper  and  cards. 

By  12  Geo.  3.  cap.  48.  If  any  person  shall  write  or  engross,  or  cause  to  be  written  or 
engrossed,  cither  the  whole,  or  any  part  of  any  writ,  mandate,  bond,  affidavit,  or  other 
writing,  matter,  or  thing  whatsoever,  in  respect  wlicreof  any  duty  is,  or  shall  be  payable 
bv  any  act  or  acts  made,  or  to  be  made  in  that  belialf,  on  the  whole,  or  any  part  of  any 
piece  of  vellum,  parchment  or  paper,  whereon  there  shall  have  been  before  written  any 
other  writ,  bond,  mandate,  atfidavit,  or  other  matter  or  thing,  in  respect  whereof  any 
duty  was  or  shall  be  payable,  as  aforesaid,  before  such  vellum,  parchment,  or  paper,  shall 
have  been  again  marked  or  stamped  according  to  the  said  acts;  or  shall  fraudulently  erase 
or  scrape  out,  or  cause  to  be  erased  or  scraped  out,  the  name  or  names  of  any  person  or 
persons,  or  any  sum,  date,  or  otlicr  thing,  written  in  such  writ,  mandate,  affidavit,  bond, 
or  other  writing,  matter  or  thing,  as  aforesaid;  or  fraudulently  cut,  tear,  or  get  otf,  any 
mark  or  stamp,  in  respect  whereof  or  whereby,  any  duties  are  or  shall  be  payable,  or, 
denoted  to  be  paid  or  payable  as  aforesaid,  frotn  any  piece  of  vellum,  parchment,  paper, 
playing  cards,  outside  paper  of  any  parcel  or  pack  of  playing  cards,  or  any  part  thereof^ 
with  intent  to  use  such  stamp  or  mark  for  any  other  writing,  matter  or  thing,  in  respect 
whereof  Any  duty  is,  or  shall  be  payable,  or  denoted  to  be  paid  or  payable,  as  aforesaid, 
then,  and  so  often,  and  in  every  such  case,  every  person  so  offending  in  any  of  the  par- 
ticulars before  mentioned,  and  every  person  knowingly  and  wilfully  aiding,  abetting  or 
assisting  any  person  or  persons,  to  commit  any  such  offense  or  otfcnses,  as  aforesaid, 
.  ehall  be  deemed  guilty  of  felony,  and  shall  be  transported  for  a  term  not  exceeding  seven 
years;  and  if  such  offender  shall  voluntarily  escape,  or  break  prison,  or  returri  from 
transportation  within  Uie  limited  tinic,  he  slmll  sufibr  death  w^itbout  benefit  of  clergy. 

XVII.  For  the  more  efrcctnal  execution  of  criminal  laws  in  the  two 

parts  of  the  united  kingdom. 

By  13  Geo.  3.  cap.  31.  sec.  4.  If  any  person  having  feloniously  taken  money,  cattle, 
goods,  or  other  elfects,  in  cither  part  of  the  united  kingdom,  and  shall  afterwards  have 
the  same,  or  any  part  thereof,  in  his  possession  in  the  other  part  of  the  united  kingdom; 
it  shall  be  lawful  to  indict,  try  and  punish  him  for  thelt  or  larciny,  in  that  part  of  the 
united  kingdom  where  he  shall  so  have  such  money,  cattle,  goods  or  other  efiecls  in  his 
possession,  as  if  the  same  had  been  stolen  there. 

And  by  sect.  5.    If  any  person,  in  either  part  of  the  united  kingdom,  shall 
knowingly  receive  or  have  any  money,  cattle,  goods,  or  other  eflccts,  stolen,    f  728  1 
or  otherwise  feloniously  taken  in  the  other  part  of  the  united   kingdom,  he 
ehall  be  liable  to  be  indicted,  tried,  and  punished  for  the  same,  in  that  part  of  the  united 
kingdom  where  he  shall  so  receive  and  have  the  same,  as  if  they  had  been  originally 
stolen  there. 

XVIII.  For  the  preventing  the  forging  or  counterfeiting  any  stamp 
or  seal  used  for  marking  calicoes,  linens  and  stuffs  to  be  printed, 
painted,  stained  or  dyed. 

By  13  Geo.  3.  cap.  56.  If  any  person  shall  counterfeit  or  forge  any  stamp  or  seal 
already  provided  by  the  commissioners  in  the  said  act  mentioned,  or  which  shall  here- 
after be  provided,  renewed,  or  altered;  or  shall  counterfeit,  or  resemble  the  impression  of 
the  same,  upon  any  of  the  said  commodities  chargeable  with  duties,  thereby  to  defraud 
his  3Iajesty  thereof,  such  person  shall  be  guilty  of  felony  without  benefit  of  clergy. 

XIX.  For  preventing  the  forging  of  the  notes  or  bills  of  the  Bank  of 

England,  «§'C. 
By  13  Geo.  3.  cap.  79.  sec.  1.  If  any  person  or  persons  (other  than  the  officers,  work- 
men,  servants,  or  agents  for  the  time  being  of  the  governor,  &-c.  of  the  bank,  to  be  autho- 
rised for  that  purpose  by  them,  and  for  their  use)  shall  make  or  use,  ox  cause  or  procure 
to  be  made  or  used,  or  knowingly  aid  or  assist  in  the  making  or  using,  or  (without  being 
authorised  as  aforesaid)  shall  knowingly  have  in  his,  her,  or  their  custody  or  possession 
(without  lawful  excuse,  the  proof  whereof  shall  lie  upon  the  person  accused)  any  frame, 
mould,  or  instrument  for  the  making  of  paper,  with  the  words  Bank  of  England,  visible 
in  the  substance  of  such  paper;  or  shall  make,  or  cause  or  procure  to  be  made,  or  know- 
ingly aid  or  assist  in  the  making  any  paper,  in  the  substance  of  which  the  said  words. 
Bank  of  England,  shall  be  visible;  or  if  any  person  (except  as  before  excepted)  shall  by 


728  HISTORIA  PLACITORUM  CORONA. 

any  art,  mystery,  or  contrivance,  cause  or  procure  the  said  words,  Bank  of  England,  to 

appear  visible  in  the  substance  of  any  paper  wiiatsoever;  or  knowingly  aid  or  assist  in 
causing  the  said  words,  linnk  of  England,  to  a|)pcar  in  the  substance  of  any  paper  what- 
soever; every  person  so  offendinor  in  any  of  the  cases  aforesaid,  sliull,  for  such  oflFcnse, 
be  deemed  a  felon,  and  shall  sutler  death  without  benefit  of  clergy.* 

XX.  To  prevent  the  stealing  of  deer. 

By  16  Geo.  3.  op.  30.  sect.  1.  The  penalty  on  persons  who  shall  hunt,  kill,  wound  or 
shoot  at,  &c.  any  tallow-deer  in  any  forest,  park,  «Scc.  without  being  duly  authorised,  is, 
for  the  second  otfensc,  felony  and  transportation  for  seven  years. 

And  by  sect.  !).  The  penally  on  persons  carrying  fire  arms  into  any  forest,  park,  Sec 
with  intent  to  destroy  deer,  is  also  felony,  and  transportation  for  seven  years. 

XXI.  To  antliorize,  for  a  limited  time,  the  punisimient  by  hard  la- 
bour of  otfenders,  who,  for  certain  crimes,  are,  or  shall  become 
hable  to  be  transported. 

By  16  Geo.  3.  cap.  43.  sect.  1.    Any  male  person  convicted  in  England  of  any  crime 

punishable  by  transportation,  may,  instead  thereof,  be  kept  to  hard  labour  in 

r  729  "1    cleansing  the  river  lliames,  «fcc.  for  any  term  not  less  than  three,  nor  more 

than  ten  years. 

And  by  sect.  15.    If  any  person  so  ordered  to  hard  labour,  shall  at  any  lime  during  the 

term,  for  which  he  shall  be  ordered  to  hard  labour,  break  prison,  or  escape;  for  the  first 

escape,  he  shall  be  punisiied  by  doubling  the  term  of  the  service  and   hard  labour  ;   and 

on  conviction  for  a  second  escape,  he  shall  be  adjudged  a  felon,  and  sutler  death  without 

benefit  of  clergy .t 

STATUTES   RELATING    TO    FELONY  ENACTED  SINCE  THE  LAST  EDITION 
OF  THIS  WORK,  WHICH   WAS  IN  THE  YEAR   177S. 

XXII.  For  granting  to  his  Majesty  certain  duties  on  licences,  to  be 
taken  out  by  all  persons  acting  as  auctioneers,  and  certain  rates 
and  duties  on  all  lands,  houses,  goods,  and  other  things,  sold  by 
auction  ;{a)  and  upon  indentures,  leases,  bonds,  deeds,  and  other 
instruments. 

By  17  Geo.  3.  ch.  50.  ^  25.  If  any  person  shall  counterfeit  or  forge,  or  procure  to  be 
counterfeited  or  forged,  any  seal,  stamp,  or  mark,  to  resemble  any  seal,  stamp,  or  mark, 
directed,  or  allowed  to  be  used  by  this  or  any  other  act  of  parliament,  for  the  purpose  of 
denoting  the  duties  by  this  or  any  other  act  of  parliament  granted,  or  shall  counterfeit 
or  resemble  the  impression  of  the  same  witli  an  intent  to  defraud  his  Majesty,  his  heirs 
and  successors,  of  any  of  the  said  duties;  or  shall  privately  or  fraudulently  use  any  seal, 
stamp,  or  mark,  directed  or  allowed  to  be  used  by  this  or  any  other  act  of  parliament, 
relating  to  the  stamp-duties,  with  intent  to  defraud  his  Majestij,  his  heirs  and  successors 
of  any  of  the  said  duties;  every  person  so  offending,  and  being  thereof  lawfully  convicted, 
shall  be  adjudged  a  felon,  and  shall  sutler  death  as  in  cases  of  felony,  without  benefit  of 
cJergy. 

XXIII.  For  preventing  the  forging  of  acceptances  of  bills  of  ex- 
change, 4'C.  with  intent  to  defraud  corporations.  Tide  stat.  7. 
Geo.  2.  ch.  22. 

By  IS  Geo.  3.  ch.  18.  If  any  person  shall  falsely  make,  alter,  forge,  or  counterfeit,  or 
cause  or  procure,  ^-c.  or  willingly  act,  ^-c.  any  acceptance  of  any  bill  of  exchange,  or  the 

*  By  13  Geo.  3.,ch.  84.  §  42,  the  malicious  destruction  of  turnpike-gates,  houses,  or 
engines,  Sfc.  is  a  felonious  and  transportable  oftence;  (and  so  as  to  rescuers,  &c.)  Vide 
indictment  hereon,  and  said  §  o^ stat.  at  large.    Cr.  Cir.  Com.  7th  edit.  740-1. 

t  By  16  Geo.  3.  ch.  34.  §  15.  If  any  person  shall  counterfeit,  &c.  or  utter,  sell,  &c. 
knowing,  &.c.  any  seal,  stamp,  or  mark,  used  for  indentures,  leases,  bonds,  or  other 
deeds,  cards,  dice,  or  newspapers,  he  shall  be  adjudged  a  felon,  and  sutfer  death  without 
benefit  of  clergy.    Vide  also  abstract  of  29  Geo.  3.  ch.  50.  §  13.  being  No.  LX.1.  post. 

(a)  Partly  repealed  as  to  aucliuns,  by  13  Geo.  3.  ch.  56.  §  1. 


HISTORIA  PLACITORUM  CORONA.  729 

namber,  or  principal  sum  of  any  accountable  receiptt  for  any  note,  bill,  or  other  security 
for  payment  of  money,  or  any  warrant  or  order  for  payment  of  money,  or  delivery  of 
goods,  with  intention  to  defraud  any  corporation  whatsoever;  or  shall  utter,  <Sfc.  with  liiic 
intention,  he  shall  be  deemed  guilty  of  felony,  and  shall  sufler  death  as  a  felon  without 
benefit  of  clergy. 

XXIV.  For  the  payment  of  costs  to  parties  on  complaints  determined 
before  Justices  of  the  peace,  out  of  sessions;  for  the  payment  of  the 
charges  of  Constables  in  certain  cases ;  and  for  the  more  eflectual 
payment  of  charges  to  witnesses  and  prosecutors  of  any  larceny, 
or  other  felony. 

By  18  Geo.  3.  ch.  19.  §  7.  On  trials  for  grand  or  petit  larceny,  or  other  felony,  the 
court  may  order  the  treasurer  of  the  county,  6jc.  to  pay  the  prosecutor  his  reasonable 
expences,  and  also  an  allowance  for  his  troui)le  and  loss  of  time,  if  he  shall  appear  to  the 
court  to  be  in  poor  circumstances.  And  also  by  the  same  statute,  §  H.  the  court  may 
order  the  payment  of  the  reasonable  expences  of  persons  appearing  on  their  recog- 
nizances, or  subpoenas,  to  give  evidence,  whether  any  bill  of  indictment  be  preferred  or 
not  to  the  grand  jury,  and  also  reasonable  allowances  for  their  trouble  and  loss  of  time, 
if  they  shall  appear  to  the  court  to  be  in  poor  circumstances. (6) 

Vide  Stat.  25  Geo.  2.  ch.  36.  §  11.  and  27  Geo.  2.  ch.  3.  §  3.  cited  in  6  T.  R.  238.  Eas- 
ter Term,  35  Geo.  3.  K.  B. 

XXV.  For  granting  to  his  Majesty  several  additional  duties  on 
stamped  vellum,  parchment,  and  paper:  and  for  belter  securing  the 
stamp  duties  upon  indentures,  leases,  deeds,  and  other  instruments. 

By  19  Geo.  3.  ch.  66.  §  8.  If  any  person  shall  counterfeit  or  forge,  or  procure  to  be 
counterfeited  or  forged,  any  seal,  stamp,  or  mark,  directed  or  allowed  to  be  used  by  this 
or  any  other  act  of  parliament,  for  the  purpose  of  denoting  the  duties  by  this  or  any 
other  act  of  parliament  granted,  or  shall  counterfeit  or  resemble  the  impression  of  the 
same,  with  an  intent,  Sfc.  or  shall  privately  or  fraudulently  use,  <Sfc.  he  shall  be  adjudged 
a  felon,  and  shall  suffer  death  as  in  cases  of  felony,  without  benefit  of  clergy. 

XXVI.  To  explain  and  amend  the  laws  relating  to  the  Transpor- 
tation, imprisonment,  and  other  punishment  of  certain  offenders. 

Vide  No.  XL.  post. 
By  19  Geo.  3.  ch.  74.  §  3.  When  any  person  is  convicted  of  felony  for  which  he  shall 
be  liable  to  be  burnt  in  the  hand,{c)  the  court  may,  instead  thereof,  impose  on  him  a 
moderate  fine,  or  (except  in  the  case  of  manslaughter)  order  him  to  be  either  publickly 
or  privately  whipped.  But  by  §  4.  this  act  shall  not  abridge  the  power  vested  in  the 
court  of  imprisoning  offenders, 

XXVII.  For  granting  to  his  Majesty  several  additional  duties  on 
advertisements;  and  certain  duties  on  receipts  for  legacies,  or  for 
any  share  of  a  personal  estate  divided  by  force  of  the  statute  of 
distributions,  or  the  custom  of  any  province  or  place.* 

By  20  Geo.  3.  ch.  28.  §  6.     If  any  person  shall  counterfeit  or  forge,  or  procure,  S^c. 
any  seal,  stamp,  or  mark,  directed  or  allowed  to  be  used  by  this  act,  or  shall 
counterfeit  or  resemble  the  impression  of  the  same,  with  intent,  <^r.  or  shall  f  730  ~\ 
privately  or  fraudulently  use,  <^c.  he  shall,  upon  conviction,  sufl^er  death  as  in 
cases  of  felony,  without  benefit  of  clergy. 

XXVIII.  For  granting  to  his  Majesty  an  additional  duty  upon  al- 
manacks printed  on  one  side  of  any  one  sheet  or  piece  of  paper,  S,'C. 

By  21  Geo.  3.  ch.  56.  §  9.     If  any  person  shall  counterfeit,  or  forge,  or  procure  to  be 

{b)  These  expences  extend  to  inferior  districts  having  jurisdiction  to  try  felons,  and 
raising  their  own  rates  similar  to  the  county  rates.  Rex  v.  Myers,  6  T.  R.  237. 

(c)  Vide  Stat.  4.  Geo.  1.  ch.  11;  6  Geo.  l.'ch.  23. 

*  Repealed  as  to  receipts  for  legacies,  and  new  duties  granted,  by  36  Geo.  3.  ch.  52.  * 
abstracted  post. 


730  HISTORIA  PLACITORUISI  CORON.F.. 

counterfeited  or  forged,  any  stamp  or  mark,  to  resemble  any  stamp  or  mark,  directed  to 
be  used  by  this  or  any  other  act  of  parliament;  or  shall  counterfeit  or  resemble  the  im- 
pression of  the  same;  or  shall  utter,  Sfc.  or  shall  privately  or  fraudulently  use,  t^c.  with 
intent  to  defraud,  Sfc.  he  shall,  upon  conviction,  sutler  death  as  in  cases  of  felony,  with- 
out benefit  of  clergy. 

XXIX.  To  explain  and*  amend  an  act,  made  in  the  fourth  year  of 
the  reign  of  his  late  JMajesty  King  Geor<:e  the  Second,  intitnled, 

I  An  Act  for  the  more  effectnal  punishing  stealers  of  lead,  and  iron 
bars,  fixed  to  houses,{d)  or  any  fences  belonging  thereunto. 

By  21  Geo.  3.  ch.  G8.  All  and  every  person  and  persons  who  shall  steal,  rip,  cut, 
break,  or  remove  with  intent  to  steal,  any  copper,  brass,  bdl-melal,  vteiisil,  or  Jixtiire, 
being  fixed  to  any  dwelling-house,  out-house,  coach-house,  stable,  or  other  building,  used 
or  occupied  with  such  dwelling-house,  or  thereunto  belonging,  or  to  any  other  building 
whatsoever,  or  fixed  in  any  garden,  orchard,  court  yard,  fenre,  or  outlet,  belonging  to 
any  dwelling-house,  or  other  building,  or  any  iron  rails,  or  fencing  set  or  fixed  in  any 
square,  court,  or  other  place  (such  |)erson  having  no  title  or  claim  to  title  thereto,)  shall 
be  deemed  and  construed  to  be  guilty  of  felony;  and  the  court  may  order  him  to  be 
transported  for  seven  years,  or  kept  to  hard  labour  in  |)rison  for  any  time  not  exceeding 
three  years,  nor  less  than  one,  subject  also  to  the  punishment  of  public  whipping  (if  the 
court  shall  think  fit,)  not  exceeding  three  times:  And  all  persons  assisting  therein,  or 
who  siiall  buy  or  receive,  i^r .  knowing,  Jffc,  are  subject  to  the  same  punishments,  although 
the  principal  felon  or  felons  has  not,  or  have  not,  been  convicted  of  stealing  the  same. 

XXX.  To  explain  and  amend  an  act,  made  in  the  twenty-ninth  year 
of  the  reign  of  his  late  Mnjest}/  King  George  the  Second,  intituled, 
An  Act  for  more  elfcctually  discouraging  and  preventing  the  steal- 
ing, and  the  buying  and  receiving  of  stolen  lead,  iron,  copper,  brass, 
bell-metal,  and  solder,  and  for  more  etfectually  bringing  the  otfeu- 
ders  to  justice. 

■  By  21  Geo.  2.  ch.  69.  Every  person  who  shall  buy  or  receive  any  pewter-pot,  or  o(her. 
vessel,  or  any  pewter  in  any  form  or  shape  whatever,  knowing  the  same  to  be  stolen,  if 
unlawfully  come  by;  or  shall  privately,  buy  or  receive  any  stolen  pewter,  by  suticring 
any  door,  window,  or  shutter,  to  be  left  open  or  unfastened,  between  sun-setting  and  sun- 
xising,  for  that  purpose;  or  shall  buy  or  receive  the  same  at  any  time,  in  any  clandestine 
mariner,  from  any  person  or  persons  whatsoever,  shall,  being  thereof  convicted  by  due 
course  of  law,  although  the  principal  felon  or  felons  has  not,  or  have  not,  been  convicted 
of  stealing  the  same,  be  transported  for  any  time  not  exceeding  seven  years,  or  be  kept 
and  detained  in  prison  and  therein  kept  to  hard  labour  for  any  time  not  exceeding  three 
years,  nor  less  than  one  year;  and  within  tliat  time  (if  the  court  shall  think  fitting)  such 
offender  or  offenders  shall  be  once,  or  oftener,  but  not  more  than  three  times,  publicly 
whipped. 

XXXI.  For  punishing  persons  wilfully  and  maliciously  destroying 
any  ivoollen,  silk,  lijien,  or  cotton  goods,  or  any  iynplements  pre- 
pared for  or  used  in  the  manufacture  thereof;  and  for  repealing  so 
much  of  two  acts,  made  in  the  twelfth  year  of  King  George  the 
First,  and  the  sixth  year  of  his  present  Majesty,  as  relates  to  the 

_.  punishment  of  persons  destroying  any  woollen  or  silk  manu- 
L  '  ^■*-  J  factures,  or  any  implements  prepared  for,  or  used  tl)erein.(e) 

By  22  Geo.  3.  ch.  40.  §  L  If  any  person  or  persons  shall,  by  day  or  by  night,  break 
into  any  house  or  shop,  or  enter  by  force  into  any  house  or  shop,  with  intent  to  cut  or 

{d)  See  the  indictments  against  Principal  and  Aider.  Cr.  Cir.  Com.  7th  edit.  459. 
Against  the  Receiver.  Ibid.  460.  Vide  Hickman's  case  and  references,  noted  in  the 
same  book,  touching  the  manner  of  laying  an  indictment  for  stealing  lead  from  a  church. 
Page  461. 

(e)  Vide  28  Geo.  3.  ch.  55.  and  29  Geo.  3.  ch.  46.  abstracted  hereafter,  being  No.  LVIII. 
and  LX. 


HISTORIA  PLACITORUM  CORONA.  731 

destroy  any  serge  or  other  woollen  goods  in  the  loom,  or  any  tools  employed  in  making 
thereof;  or  shall  wilfully  and  maliciously  cut  or  destroy  any  such  serges  or  woollen 
goods  in  the  loom,  or  on  the  rack  ;  or  shall  burn,  cut,  or  destroy  any  rack  on  which  any 
such  serges  or  other  woollen  goods  are  handed  in  order  to  dry;  or  shall  wilfully  and 
maliciously  hrcak  or  destroy  any  tools  used  in  the  making  any  such  serges  or  other 
woollen  goods,  not  having  the  consent  of  tlic  owner  so  to  do;  every  such  offender,  being 
thereof  lawfully  convicted,  shall  be  guilty  of  felony,  without  benefit  of  clergy. 

^  2.  To  the  same  effect  as  to  silk  goods,  or  tools  used  in  the  manufacturing  thereof. 

§  3.   The  like  as  to  linen  and  cotton  manufactures,  Sfc. 

§  4.  Repeals  part  of  12  Geo.  1.  ch.  34;  and, 

§  5.  Repeals  part  of  6  Geo.  3.ch.  28.(/) 

XXXII,  For  the  more  easy  discovery  and  effectual  punishment  of 

buyers  and  receivers  o^  stolen  goods. 

By  22  Geo.  3.  ch.  58.  §  1.  Buyers  or  receivers  of  stolen  goods  (except  lead,  iron,  cop. 
per,  brass,  bell-metal,  and  solder,)  although  the  offence  of  the  principal  amounts  to  petit 
laiceny(^'r)  only,  knowing,  Sfc.  may  be  prosecuted  for  a  misdemeanor,  and  punished  by 
fine,  imprisonment,  or  whipping,  although  the  principal  felon  or  felons  be  not  before  con- 
victed of  the  said  felony,  and  whether  he,  she,  or  they,  is  or  are  amenable  to  justice  or 
not.  But  where  the  felony  actually  committed  shall  amount  to  grand  larceinj,  and  the 
party  actually  committing  thereof  shall  not  be  before  convicted,  such  offender  or  offenders 
shall  be  exempted  from  being  punished  as  accessary  or  accessaries,  if  such  principal 
felon  or  felons  shall  be  afterwards  convicted. 

By  §  2.  justices  may  grant  search-warrants  and  commit,  ^-c. 

§  3.  Constables,  iSfC.  may  apprehend  persons  suspected,  Sfc. 

§  4.  Persons  offering  stolen  goods  to  be  pawned  or  sold  rtiay  (upon  reasonable  cause) 
betaken  before  a  justice,  6fc. 

§  5.  Persons  under  fifteen  years  of  age,  charged  with  felony,  within  benefit  of  clergy, 
pardoned  upon  discovering  two  or  more  receivers,  i^fc. 

§  6.  Not  to  repeal  any  former  law,  Sfc.  nor  shall  an  offender  convicted  under  this  act 
be  punished  for  the  same  offence  by  any  such  former  law. 

XXXIII,  For  repealing  an  act  made  in  liie  twenty-second  year  of 
his  present  JMajesty,  intituled,  ./^;2  act  for  charging  a  stamp  duty 
upon  inland  bills  of  exchange, pro?nis.wry  notes,  or  other  notes 
payable  otherwise  than  upon  demand;  and  for  granting  new 
stamp  duties  on  bills  of  exchange,  promissory  and  other  notes; 
and  also  stamp  duties  upon  receipts.* 

By  23  Geo.  3.  ch.  49.  §  20.  If  any  person  shall  counterfeit  or  forge^or  procure  to  be 
counterfeited  or  forged  any  stamp  or  mark  directed  or  allowed  to  be  used  by  this  act,  or 
shall  fraudulently  use,  S^c.  with  intent,  i^c.  or  shall  utter,  vend,  sell,  or  expose  to  sale, 
any  vellum,  parchment,  or  paper,  liable  to  the  said  duties,  with  any  counterfeit  mark  or 
impression  thereupon,  knowing,  i^c.  he  shall,  upon  conviction,  suffer  death  as  in  cases 
of  felony,  without  benefit  of  clergy. 

XXXIV,  For  granting  to  \\\s  Majesty  sevev^X  additional  and  new 
duties  upon  stamped  vellum,  parchment,  and  paper;  and  also  for 
repealing  certain  exemptions  from  the  stamp  duties.! 

By  23  Geo.  3.  ch,  58.  §  11.  If  any  person  shall  counterfeit  or  forge,  or  procure  to  be 
counterfeited  or  forged,  any  seal,  stamp,  or  mark,  directed  or  alloi\'ed  to  be  Used  by  this, 
or  any  other  act,  or  shall  utter,  4"C.  or  privately  or  fraudulently  use  any  seal,  i^c.  he 
shall,  upon  conviction,  suffer  death  as  in  cases  of  felony  without  benefit  of  clergy. 

(/)  For  an  indictment  on  the  stat.  in  question,  viz.  22  Geo.  3.  ch.  40.  vide  Cr.  Gir. 
Com.  7th  Edit.  692. 

(or)  At  common  law  there  can  be  no  accessaries  in  petit  larceny.     Vide  ante,  p.  616. 

*  Duties  under  this  act  to  cease,  and  new  ones  granted,  by  31  Geo.  3.  ch.'2o.  abstract- 
ed post. 

t  Partly  repealed  by  36  Geo.  3.  ch.  52.  abstracted  post. 


732  HISTORIA  PLACITORUM  CORONA. 

XXXV.  For  the  more  effectual  preventing  the  illegal  importation  of 
foreign  spirits,  and  for  putting  a  stop  to  the  private  distillation  of 
£7niish-mvide  spirituous  liquors,  <§•«•. 

By  23  Geo.  3.  ch.  70.  §  9.  Persons  making-  frames,  moulds,  plates,  Sfc.  for  excise-per- 
mits, or  paper  for  tliat  purpose,  ^c.  and  their  aiders,  unless  appointed  by  the  cominis- 
sioners  of  excise,  Sfc,  shall,  upon  jconviction,  suffer  death  as  in  cases  of  felony,  williout 
benefit  of  clergy. 

XXXVI.  To  extend  the  provisions  of  an  act  (intituled  an  act  to 
amend  and  make  more  eflectual  the  laws  relating  to  rognes,  vai^a- 
honds,  and  other  idle  and  disorderly  persons,  and  to  houses  of 
correction,)  to  certain  cases  not  therein  mentioned. 

By  23  Geo.  3.  ch.  88.  If  any  person  or  persons  be  apprehended  having  any  implement 
for  liouse-breaking,  or  any  offensive  weapon,  with  a  filonioiis  intent,  S;c.  or  shall  be 
found  in  or  upon  any  dwelling-house,  warehouse,  coach-house,  stable,  or  out-house,  or  iu 
any  inclosed  yard  or  garden,  or  area  belonging  to  any  house,  with  an  intent  to  steal  any 
goods  or  chattels;  every  such  person  shall  be  deemed  a  rogue  and  vagabond,  within  the 
intent  and  meaning  of  slat.  17  Geo.  2.  ch.  5. (A) 

XXXVII.  For  granting  to  his  Majesty  certain  additional  rates  of 
postage  for  conveyance  of  letters  and  packets,  by  the  post,  within 
the  kingdom  of  Great  Britain;  and  for  preventing  frauds,  6,-0. 

By  24  Geo.  3.  Sess.  2.  ch.  37.  §  9.  If  any  person  shall  forge  or  counterfeit  the  hand- 
writing of  any  person  whatsoever,  in  the  subscription  of  any  letter  or  packet  to  be  se'ht 
by  the  post  in  order  to  avoid  the  postage,  or  the  date,  ^-c.  or  shall  send  by  the  post  any 
forged  or  counterfeited  subscription  on  any  letter  or  packet,  knowing,  ^c  he  shall  be 
deemed  guilty  of  felony,  and  transported  for  seven  years. 

XXXVIII.  For  the  more  eflectual  prevention  of  smuggling  in  this 

kingdom. 
Vide  No.  LVI.  and  LXXI.  post. 
By  24  Geo.  3.  sess.  2.  ch.  47.  §  11.  If  any  person  shall  maliciously  shoot  at  any  ship, 
vessel,  or  boat,  belonging  to  his  Majesty's  navy,  or  in  the  service  of  the  customs  or  excise, 
within  four  leagues  of  the  limits  of  any  port,  Sfc.  or  the  coast  thereof,  ^-c.  or  at  any 
officer,  «Sfc.  when  in  the  execution  of  their  duty,  he  shall,  being  thereof  lawfully  convicted, 
be  adjudged  guilty  of  felony,  and  shall  suffer  death  as  a  felon,  without  benefit  of  clergy, 
and  so  as  to  the  aiders  and  abetters  therein. 

XXXIX.  For  granting  to  his  Majesty  certain  duties  on  licenses  for 

vending  hats  by  retail,  4'C.* 

By  24  Geo.  3.  sess.  2.  ch.  51.  §  15.  If  any  person  shall  counterfeit,  S^c.  or  privately 
or  fraudulently  use,  S(c.  any  seal,  stamp,  or  mark,  directed  or  allowed  by  this  act,  he 
shall  be  adjudged  a  felon,  and  suffer  death,  without  benefit  of  clergy. 

XL.  For  the  transportation  of  felons  and  other  offenders,  S,'C. 

By  24  Geo.  3,  sess.  2.  ch.  56.  ^  1.  His  Majesty  in  council  may  direct  to  what  place 
the  fielons  shall  be  conveyed,  ^-c.  By  §  6.  they  may  be  sent  to  the  River  Thames,  S^c. 
There  are  many  regulations  respecting  this  subject  in  the  "statute :  and  there  are  also 
other  subsequent  statutes,  such  as  27  Geo.  3.  ch.  2.  touching  the  transportation  of  felons 
to  New  South  Wales,  Sfc.     See  also  28  Geo.  3.  ch  24,  and  37  Geo.  3.  ch.  140. 

XLI.  To  empower  Xhejt/sfices  of  oyer  and  terminer  and  gaol-deli- 
very of  Neivgate  for  the  county  of  Middlesex,  to  continue,  4'C. 

By  25  Geo.  3.  ch.  18.  If  a  session  of  oyer  and  terminer  and  gaol-delivery  of  Newgate 
for  the  county  of  Middlesex  shall  have  been  begun,  before  the  essoign  day  of  any  term,  it 
shall  not  be  discontinued  by  the  sitting  of  the  court  of  King'' s  Bench,  SfC. 

(h)   Vide  21  Geo.  3.  c^.  11. 

*  Partly  repealed  by  36  Geo.  3.  ch.  125.  abstracted  post. 


HISTORIA  PLACITORUM  CORONA.  733 

XLII.   For  grantii^  to  his  Majesty  certain  stamp-duties  on  licences 
to  be  taken  out  by  pawnbrokers. 

By  25  Geo.  3.  ch.  48.  §  10.  If  any  person  shall  counterfeit,  tfec.  any  seal,  stamp,  or 
mark,  directed  by  this  act,  or  shall  counterfeit  or  resemble  the  impression  of  the  same 
upon  any  vellum,  ttc.  or  shall  utter,  or  use,  &c.  knowing,  «&c.  he  shall  be  adjudged  a 
felon,  and  shall  suffer  death,  without  benefit  of  clergy. 

XLIII.  Por  repealing  an  act  made  in  the  twenty-fourth  year  of  the 
reign  of  his  present  Majesty,  intituled,  ^^n  act  for  gi^antin^  to  his 
Majesty  certain  duties  on  certijicates,  issued  with  respect  to  the 
kilting  of  game;  and  for  granting  other  duties  in  lieu  thereof. 

Vi^le  No.  LXIV.  post. 

By  25  Geo,  3.  ch.  50.  §  19.  If  any  person  shall  counterfeit,  &c.  any  seal,  stamp,  or 
mark,  directed  by  this  act,  or  shall  counterfeit  or  resemble  the  impression  of  the  same,  or 
shall  utter,  or  use,  &c.  knowing,  &.C.  he  shall  be  adjudged  a  felon,  and  shall  suffer  death, 
without  benefit  of  clergy. 

XLIV.   For  granting  to  his  Majesty  certain  duties  on  licences  to  be 
taken  out  for  vending  gloves  or  mittens,  by  retail. 

By  25  Geo.  3.  ch.  55.  fy  15.  If  any  person  shall  counterfeit,  &c.  any  seal,  stamp,  or 
mark,  directed  by  this  act,  or  shall  utter  or  use,  &.c.  knowing,  &,c.  he  shall  be  adjudged 
a  felon,  and  shall  suffer  death,  without  benefit  of  clergy. 

XLV.  For  repealing  an  act  made  in  the  twenty^third  year  of  the 
reign  of  his  present  JNIajesty,  intituled,  t^/i  aot  for  granting;  to  his 
Majesty  a  stamp  duty  on  licences  to  l)e  taken  out  by  certain  per- 
sons uttering  or  vending  medicines,  Sj-c.  and  for  granting  other 
duties  in  lieu  thereof 

By  25  Geo.  3.  ch.  79.  §  17.  If  any  person  shall  counterfeit,  «fec.  any  seal,  stamp,  or 
mark,  directed  by  this  act,  or  shall  counterfeit  or  resemble  the  impression  of  the  same 
upon  any  vellum,  &,c.  or  shall  utter,  or  use,  &c.  knowing,  &,c.  he  shall  be  adjudged  a 
felon,  and  shall  suffer  death,  without  benefit  of  clergy. 

XLVI.  For  granting  to  his  Majesty  certain  duties  on  certificates  to 
be  taken  out  by  solicitors,  attornies,  <S'C.  and  other  duties  with  re- 
spect to  warrants,  mandateSjand  authorities,  to  be  entered  or  filed 
of  record. 

By  25  Geo.  3.  ch.  80.  §  30.  If  any  person  shall  counterfeit  or  forge  any  seal,  stamp,  or 
mark,  directed  or  allowed  by  this  act,  or  siiall  counterfeit  or  resemble  the  impression  of 
the  same,  or  shall  utter,  or  use,  &c.  knowing,  »fcc.  he  shall  be  adjudged  a  felon,  and  shall 
suffer  death,  without  benefit  of  clergy. 

XLVII.  For  granting  to  his  Majesty  certain  duties  on  stamped  vel- 
lum,  parchment,  and  paper,  within  that  part  of  Great  Britain 
called  Scotland,  to  replace  to  the  revenue  the  salaries  granted  to 
judges  there,  Sec. 

By  26  Geo.  3.  ch.  48.  §  9.  If  any  person  shall  counterfeit,  &c.  any  seal,  stam|),  or 
mark,  directed  by  this  act,  or  shall  counterfeit  or  resemble,  or  cause,  &c.  the  impression 
of  the  same  upon  any  vellum,  &lc.  or  shall  utter,  or  use,  «fcc.  knowing,  &c.  he  shall  be 
adjudged  a  felon,  and  shall  suffer  death,  without  benefit  of  clergy. 


733  HISTORIA  PLACITORUM  CORONiE. 

XLVIII.  For  granting  to  his  Majeaty  certain  sgimp  duties  on  per- 
fioneriy,  hair  powder,  and  other  articles  therem  mentioned;  and 
on  licences  to  be  tai^en  out  by  persons  uttering  or  vending  the 
same. 

By  2fi  Geo.  3.  ch.  49,  §  24.  If  any  person  shall  counterfeit,  &c.  any  seal,  stamp,  or 
mark,  directed  by  this  act,  or  shall  counterfeit  or  resemble  the  impression  of  the  same 
upon  any  vellum,  »fec.  or  shall  utter,  or  use,  &c.  he  shall  be  adjudged  a  felon,  and  shall 
suffer  death,  without  benefit  of  clergy. 

XLIX.   For  better  securing  the  duties  on  starch,  and  for  preventing 
frauds  on  the  said  duties. 

By  26  Geo.  3.  ch.  51.  §  14.    If  any  person  shall  forr^e  or  counterfeit  any 
I    734  J   stamp  or  seal,  to  resemble  any  stamp  or  seal  which  shall  be  provided  in  pur- 
suance of  this  act,  or  shall  counterfeit  or  resemble  the  impression  of   iJie 
same  upon  the  papers  containinjr  starch,  thereby  to  defraud,  &,c.  he  shall  be  adjudged  a 
felon,  and  shall  sutFer  death,  without  benefit  of  clergy. 

L.   For  regulating  houses,  and  other  places,  kept  for  the  purpose  of 
slaughtering  horses. 

By  26  Geo.  3.  ch.  71.  §  8.  If  any  person  shall  slaughter  any  horse,  mare,  or  jrelding, 
foal  or  filly,  ass  or  mule,  or  any  bull,  cow,  heifer,  ox,  calf,  sheep,  hog,  goat,  or  other  cat- 
tle, for  any  other  purpose  than  for  butcher's  meat :  or  shall  slay  any  horse,  &.c.  brought 
dead  to  such  slaughter-house,  or  other  place,  without  taking  out  a  licence,  or  without 
giving  notice,  &,c.  or  shall  slaughter,  &:c.  at  any  time,  other  than  and  except  certain 
hours  in  this  act  limited,  &,c.  he  shall  upon  conviction,  be  adjudged,  deemed,  and  taken 
to  be  guilty  of  felony,  and  shall  be  punished  by  fine  and  imprisonment,  and  such  cor- 
poral  punishment,  by  public  or  private  whipping,  or  shall  be  transported  beyond  the  seas 
for  any  time  not  exceeding  seven  years,  as  the  court  shall  direct. 

By  §  9.  Persons  destroying,  limeing,  or  burying  hides,  &.c.  shall,  upon  conviction,  be 
adjudged  guilty  of  a  misdemeanor,  and  punished  by  fine  and  imprisonment,  and  such 
corporal  punishment  by  public  or  private  whipping,  as  the  court  shall  direct. 

LI.   For  better  securing  the  duties  on  paper  printed,  painted,  or 
stained  in  Great  Britain. 

By  26  Geo.  3.  ch.  78.  §  13.  If  any  person  shall  counterfeit  or  forge  any  stamp  or  seal, 
to  resemble  any  stamp  or  seal  provided  by  this  act,  or  shall  counterfeit  or  resemble  the 
impression,  &c.  he  shall  be  adjudged  a  felon,  and  shall  suffer  death,  without  benefit  of 
clergy. 

LII.  For  the  more  effectnally  carrying  into  execution  the  laws  re- 
lating to  the  duties  on  stamped  vellum,  parchment,  and  paper,  4'C. 
[Touching  general  evidence,  4'c.] 

By  26  Geo.  3.  ch.  82.  §  6.  Reciting  that  "  great  difficulties  have  frequently  arisen  upon 
the  trial  of  divers  informations,  indictments,  and  other  prosecutions  for  offences  commit- 
ted against  his  Majesty's  revenue  on  stamped  vellum,  parchment,  and  paper,  by  requiring 
strict  proof  of  the  commissions,  deputations,  or  other  authorities  under  which  the  said 
commissioners,  and  the  officers,  and  other  persons  appointed  and  employed  by  them  to 
(farry  the  same  into  execution,  have  acted,"  it  is  enacted,  that  upon  the  trial  of  any  in- 
formation, indictment,  or  other  prosecution,  for  any  offence  committed  against  any  act 
or  acts  of  parliament  touching  or  concerning  the  said  duties,  or  any  of  them,  whereby 
any  person  shall  or  may  be  deemed  or  construed  to  be  guilty  of  felony,  it  shall  be  suffi- 
cient to  prove  that  such  officer,  &c.  acted  under  the  commissioners,  without  producing 
or  proving  the  particular  commission,  deputation,  or  other  authority  by  which  he  was 
constituted,  appointed,  or  employed. 


HISTORIA  PLACITORUM  CORONA.  734 

LIII.  For  incorporating  certain  persons  therein  named, by  the  name 
and  stile  of  the  British  Society  for  extending  the  fisheries,  and 
improving  the  Sea-coasts  of  this  kingdom ;  audi  to  enable  them 
to  subscribe  a  joint  stock,  and  therewith  to  purchase  lands,  and 
build  thereon,  in  Scotland,  <§'C. 

By  26  Geo.  3,  ch.  106.  §  26.  If  any  person  shall  forge  or  counterfeit  the  seal  of  the 
society,  or  any  deed  or  writing  under  tlie  common  seal,  or  shall  demand  any  money  in 
pursuance  of  any  such  forged  or  counterfeited  deed  or  writing,  either  from  the  society 
or  any  members  or  servants  thereof,  knowing,  >fcc.  lie  shall  be  adjudged  guilty  of  felony, 
and  shall  be  transported  in  manner  as  by  law  directed,  for  a  term  not  exceeding  seven 
jears. 

LIV.  For  repeahng  the  several  duties  of  customs  and  excise,  and 
granting  other  duties  in  lieu  thereof,  and  for  applying  the  said 
duties,  with  others,  composing  the  revenue,  &;c.  and  for  applying 
certain  unclaimed  monies,  remaining  in  tlie  Exchequer  for  the 
pavment  of  annuities  on  lives,  to  the  reduction  of  the  national 
debt. 

By  27  Geo.  3.  ch.  13.  §  46.    If  any  person  shall  counterfeit,   &c.  any  seal,  stamp,  or 
mark,  directed  by  this,  or  any  former  act  or  acts,  relating  to  the  duties  under  the  man- 
agement of  the  commissioners,  &c.  or  shall  counterfeit  or  resemble  the  im- 
pression of  the  same;  or  shall  utter^  or  use,  &-c.  knowing,  &c.  he  shall  be   f  735  J 
adjudged  a  felon,  and  shall  suffer  death,  without  benefit  of  clergy.* 

LV.  For  making  allowances  to  the  dealers  in  foreign  ivlnes,  for 
the  stock  of  certain  foreign  wines  in  their  possession,  at  a  certain 
time,  upon  which  the  duties  on  importation  have  been  paid ;  and 
for  amending  several  laws  relative  to  the  revenue  of  excise. 

By  27  Geo.  3.  ch.  31.  §  13.  If  any  person  shall  counterfeit  or  forge  any  stamp  or 
seal  to  resemble  any  stamp  or  seal  which  shall  be  provided  or  made  in  pursuance  of  this 
act,  or  shall  counterfeit  or  resemble  the  impression  of  the  same,  upon  any  printed, 
stained,  painted,  or  dyed  calico,  muslin,  linen,  stuff,  fustian,  velvet,  velveret,  dimity,  or 
other  figured  stuff,  with  intent,  ^c.  he  shall  be  adjudged  guilty  of  felony,  and  shall  suffer 
death,  without  benefit  of  clergy. 

LVI.  For  making  further  provisions  in  regard  to  such  vessels  as 
are  particularly  described  in  an  act  made  in  the  twenty-fourth 
year  of  the  reign  of  his  present  Majesty,  for  the  more  effectual 
prevention  of  smuggling  in  this  kingdom,{i)  and  for  extending, 
4*c.  Sf-c. 

By  27  Geo.  3.  ch.  32.  §  14.  If  any  person  shall  forge,  Sfc.  any  stamp  or  seal,  or  the 
impression,  <^-c.  to  resemble,  S^c.  those  provided  by  this  act,  hp  shall  be  adjudged  a  felon, 
and  shall  suffer  death,  without  benefit  of  clergy. 

LVI  I.  For  taking  and  swearing  affidavits  to  be  made  use  of  in 
the  court  of  session  of  the  county  palatine  of  Chester,  and  for 
taking  of  special  bail  in  actions  and  suits  depending  in  the  same 
court. 

By  27  Geo.S.ch.  43.  §  4.  Any  person  who  shall  before  any  person  or  persons  em- 
powered  by  this  act  to  take   special  bail,  represent  or  personate  any  other   person  or 

*  Repealed  as  to  duties  on  goat  and  sheep  skins,  by  31  Geo.  3.  ch.  27.  Vide  ^o, 
XCVIII.  po8t. 

CO   Vide  No.  XXXVIII.  ante;  No.  LXVII.  and  L^Xl.  post. 


735  HISTORIA  PLACITORUM  CORONA. 

persons,  whereby  the  person  or  persons  so  represented  or  personated  may  be  liable  to 
the  payinent  of  any  sum  or  sums  of  money  for  debt  or  danjages,  to  be  recovered  in  tlie 
same  suit  or  action  wlierein  such  person  or  persons  is  or  are  represented  or  personated, 
as  if  lie,  she,  or  tliey,  liati  really  acknowledged  and  entered  into  the  same,  he  shall  be 
adjudged  a  felon,  and  sliall  sutler  and  incur  the  same  pains,  penalties,  and  tbrfeitures,  as 
persons  convicted  of  the  like  offences  are  liable  to  by  virtue  of  an  act  past  in  the  fourth 
year  of  the  reign  of  king  Willium  and  queen  Mary,  intituled  An  act  for  takinfr  special 
hails  in  the  country,  upon  actions  and  suits  depending  in  the  courts  of  King''8  Bench, 
Common  I'leas,  and  Exchequer  at  \V€Stininster.{k) 

Vide  Stat.  34  Geo.  3.  ch.  46.  §  5,  as  to  personating  bail,  SfC.  in  the  county  palatine  of 
Lancaster, 

LVIII.  For  the  better  and  more  effectual  protection  of  stockins^ 
fraiyies.  and  the  machines  or  engines  annexed  thereto,  or  used 
therewith;  and  for  the  punishment  of  persons  destroying  or  in- 
juring of  such  stocking  frames,  machines,  or  engines,  and  the 
frame-work  knitted  pieces,  «§'C. 

Vide  No.  XXXI.  ante,  and  No.  LX.  post. 
By  28  Geo.  3,  ch.  .55.  §  4.  If  any  person  shall  by  day  or  by  night,  enter  by  force  into 
any  house,  shop,  or  place,  with  an  intent  to  cut  or  destroy  any  frame-work  knitted  pieces, 
stoekitigs,  or  other  articles,  S>;c.  or  shall  wiitully  and  maliciously  cut  or  destroy  any 
frame-work  kntited  pieces,  i^c.  or  shall  wilfully  and  maliciously  break,  destroy,  or  dam- 
age any  frame,  machine,  engine,  tool,  instrument,  or  utensil,  used  in  and  tor  the  work- 
ing and  making  of  any  such  fran>e-work  knitted  pieces,  «.^-c.  not  having  the  consent  of 
the  owner  so  to  do,  i^c.  he  shall  be  adjudged  guilty  of  felony,  and  shall  be  transported  to 
some  of  his  Majesty's  dominions  beyond  the  seas,  for  any  space  or  term  of  years  not  ex- 
ceeding fourteen  years  nor  less  than  seven  years, 

LIX,  For  raising  a  certain  sum  of  money,  by  way  of  an- 
\_  736  ]      mtities,  to  be  attended  with  the  benefit  of  survivorship, 
in  c/asses. 

By  29  Geo.  3.  ch.  41.  §  36.  Persons  forging,  <^c.  or  altering  registers,  «^c.  or  perso- 
nating lite  proprietor  of  any  order,  ^c.  or  nominee,  ^c.  sliall  be  adjudged  guilty  of 
felony,  and  shall  suffer  death,  as  in  cases  of  felony,  without  benetit  of  clergy. 

LX.  For  preventing  the  wilfully  burning  or  destroying  ships,  and 
and  the  wilfully  and  maliciously  destroying  any  ivoollen,  silky 
linen,  or  cotton  goods,  ov  any  implements  prepared  lor  or  used  in 
the  manufacture  thereof,  in  that  part  of  Great  Britain  called 
Scotland.  ,•  -^ 

By  20  Geo.  3.  ch.  46.  Any  owner,  Sfc.  destroying  any  vessel  with  intent  to  defraud 
underwriters,  SfC.  shall,  upon  conviction  in  Scotland,  sutTer  death,  as  in  other  cases  of 
capital  crimes:  so  as  to  persons  entering  forcibly  into  any  house,  6fC.  with  intent  to 
destroy  any  goods  in  the  loom,  ^-c.  or  tools,  Sfc,  upon  conviction  in  Scotland. 

LXI.  For  granting  to  his  Majestt/  several  additional  stamp  duties  on. 
newspapers,  advertisements,  and  on  cards  and  dice. 

By  29  Geo.  3.  ch.  50.  §  13.  If  any  person  shall  counterfeit,  ^c.  any  seal,  stamp,  or 
mark,  directed  b}'  this  or  any  former  act  of  parliament,  or  shall  counterfeit  or  resemble 
the  impression  of  the  same,  or  shall  utter,  or  use,  ^-c.  with  intent  to  defraud  his  Majesty, 
S(C.  he  shall  be  adjudged  a  felon,  and  shall  sutfer  death  as  in  cases  of  felony,  vrithout 
benetit  of  clergy. 

(A-)  See  an  indictment  for  personating  bail  on  this  statute,  viz.  4  W.  «^-  M.  ch.  4.  Cr. 

Cir.  Com.   7lh  Edit.   185.     It  does  not  take  away  the  benefit  of  clergy,  but  that  of 

21  Jac.  1.  ch.  26,  in  certain  cases,  does.  Vide  observations  on  both  these  statutes  same 
book,  p.  186.     Vide  also  ante,  696. 


HISTORIA  PLACITORUM  CORONA.  736 

LXII,  For  granting  to  his  Majesty  several  additional  stamp  duties 
on  probates  of  wills,  letters  of  administration,  and  on  receipts  for 
legacies,  or  for  any  share  of  a  personal  estate  divided  by  force  of 
the  statute  of  distributions,* 

By  29  Geo.  3.  ch.  51.  ^  8.  If  any  person  shall  counterfeit,  ^c.  any  seal,  stamp,  or 
mark,  directed  or  allowed  to  be  used  by  this  or  any  former  act  of  parliament,  or  shall 
counterfeit  or  resemble  the  impression  of  the  same,  or  shall  utter,  or  use,  ^c.  with  intent, 
Sfc.  he  shall  be  adjudged  a  felon,  and  shall  suffer  death  as  in  cases  of  felony,  without 
benefit  of  clergy. 

LXIII.  For  giving  relief  to  such  persons  as  have  suffered  in  their 
rights  and  properties,  during  the  late  unhappy  dissentions  in  Jlme- 

^  rica,  4'C.  and  also  for  making  compensation  to  such  persons  as 
have  suffered  in  their  properties  in  consequence  of  the  cession  of 
the  province  of  East  Florida  to  the  King  of  Spain. 

By  30  Geo.  3.  ch.  34.  §  11.  If  any  person  shall  forge  or  counterfeit  any- order,  which 
phill  have  been  made  forth,  or  renewed,  by  virtue  of  this  act,  belbre  the  same  shall  have 
been  paid  off  and  cancelled,  or  any  indorsement,  Sfc.  or  tender  in  payment,  S[c.  with 
intent  to  defraud  his  Majesty,  or  the  person  to  be  ajjpointcd  to  pay  off  the  same,  or  to  pay 
any  interest  thereupon,  he  shall  be  adjudged  a  felon,  and  shall  suffer  death  as  in  cases 
of  felony,  without  benefit  of  clergy. 

LXIV.  For  granting  to  his  Majesty  ^w  additional  duty  on  certificates 
issued  with  respect  to  the  killing  game.(/) 

By  31  Geo.  3.  ch.  21.  §  5.  If  any  person  shall  counterfeit,  «^c.  any  seal,  stamp,  or 
mark,  to  resemble  any  seal,  stamp,  or  mark,  directed  by  this  act,  or  shall  counterfeit  or 
resemble  the  impression  of  the  same,  or  shall  utter,  or  use,  SfC.  he  shall  suffer  death  as 
in  cases  of  felony,  without  benefit  of  clergy. 

LXV.  For  repealing  the  duties  now  charged  on  bills  of  exchange, 
promissory  notes,  and  other  notes,  drafts,  and  orders,  and  on  re- 
ceipts; and  for  granting  other  duties  in  lieu  thereof.(m) 

By  31  Geo.  3.  ch.  25.  §  29.     If  any  person  shall  counterfeit,  ^-c.  any  stamp 
or  mark,  directed  by  this  act,  or  resemble  the  impression  of  the  same,  or  shall   ]    737    \ 
utter,  or  use,  ^c.  he  shall  suffer  death  as  in  cases  of  felony,  without  benefit  of 
clergy. 

LXVl.  To  render  persons  convicted  of  petty  larceny  competent  wit- 
nesses. 

By  31  Geo.  3.  ch.  35,  Reciting  that  "  Whereas  persons  convicted  o? grand  larceny  are 
by  their  punishment  restored  to  their  credit  as  witnesses,  but  persons  convicted  of  /letty 
larceny  are  rendered  and  remain  wholly  incompetent  to  be  examined  as  witnesses,  it  is 
enacted,  that  from  and  after  the  24th  day  of  June,  one  thousand  seven  hundred  and 
ninety  one  no  person  shall  be  an  incompetent  witness  by  reason  of  a  conviction  for  petty 
larceny. 

LXVII.  For  explaining  and  amending  an  act,  passed  in  the  thirty- 
first  year  of  the  reign  of  his  late  Majesty  King  George  the  Second, 
intituled,  ^n  Act  for  the  encouragement  of  seamen  employed  iji 
the  Royal  iVayy,  4'c.  and  for  further  extending  the  benefits  thereof 

»  Repealed  as  to  receipts  for  legacies,  and  new  duties  granted,  by  36  Geo.  3.  ch.  52, 
abstracted  post. 

{I)   Vide  No.  XLIII.  ante.  (m)   Vide  No.  LXXVII.  and  No.  XC.  post. 


737  HISTORIA  PLACITORUM  CORONA. 

to  petty  officers  and  seamen,  non-commissioned  officers  of  marines, 
and  marines,  serving,  or  who  may  have  served,  on  board  any  of 
his  Majesty^s  ships. 

Vide  No.  LXXIV.  post. 
By  32  Cleo.  3.  rh.  33.  §  23.  If  any  person  shall  falsely  make,  forge,  or  counterfeit,  c^r. 
or  utter,  &fc.  any  ticket  for  the  wages  xit  pay  due  to  any  petty  officer  or  seamnn,  non- 
commissioned olliccr  of  marines,  or  marine,  for  his  services  on  board  any  ship  or  vessel 
of  his  Majesty,  or  any  duplicate  thereof,  i^r.  with  intention  to  receive  any  wages,  S^c. 
shall  suffer  death  as  a  felon,  without  benefit  of  clergy. 

LXVIII.  For  explaining  and  amending  an  act  passed  in  the  twenty- 
sixth  year  of  the  reign  of  liis  present  Majesty,  intituled  ^in  act 
for  the  further  preventhig  frauds  and  abuses  attcndhig  the  pay- 
ment of  wages,  prize-money,  &,'C.  and  for  further  extending  llie 
benefits  thereof  to  petty-olficers,  SfC. 

Vide  No.  LXXIV.  post. 
By  32  Geo.  3.  ek.  34.  §  29.  If  any  person  shall  falsely  make,  forge,  or  counterfeit,  <^-c. 
or  utter,  i^c.  any  petition  for  a  ceriificate  to  enable  any  person  or  persons,  to  obtain  let- 
ters  of  administration  to  any  petty  officer,  «^-c.  or  shall  falsely  make,  forge,  or  counterfeit, 
i^-c.  or  utter,  i^c.  any  certitieale  for  enabling  him  to  obtain  probate  or  letters  of  adminis- 
tration, with  the  win  annexed,  i^c.  he  shall  suffer  death  as  a  lelon,  without  benefit  of 
clergy. 

LXIX.  For  enabling  his  Majesty  to  direct  the  issue  of  exchequer 
bills  to  a  limited  amount,  for  the  purposes  and  in  the  manner  there- 
in mentioned. 

By  33  Geo.  3.  ch.  29.  §  48.  If  any  person  shall  forge,  ^'c.  any  certificate  or  certificates 
of  the  commissioners  by  this  act  appointed,  or  any  receipt  to  be  given  by  the  cashier  or 
cashiers  of  the  bank  oi'  England,  in  pursuance  of  this  act;  or  shall  willully  deliver  to  the 
auditor  of  the  reeei[)t  of  his  Majesty's  exchequer  for  the  time  being,  6(c.  or  shaU  utter, 
6fC.  with  intent  to  defraud  his  Mnjestij,  or  any  body  or  bodies  politic  or  corporate,  or  any 
person  whomsoever,  he  shall  sufJer  death  as  in  cases  of  felony  without  benefit  of  clergy. 

LXX.  For  the  better  preventing  forgeries  and  frauds  in  the  transfers 
of  the  several  funds  transferable  at  the  bank  of  England. 

By  33  Geo.  3.  ch.  30.  §  1,  2,  3.  Persons  making,  or  assisting  in  making,  transfers  of 
stock  in  any  other  names  than  the  owners;  or  forging  or  assisting  in  forging  transfers, 
^•c.  or  making,  or  assisting  in  making,  false  entries  in  the  books  of  the  bank,  ^c.  shall 
be  deemed  guilty  of  felony,  and  shall  suffer  death  without  benefit  of  clergy. 

And  by  §  4.  If  any  clerk,  S^c.  employed  or  entrusted  by  the  governor  and  company, 
shall  knowingly  or  wilfully  make  out  or  deliver,  S^c.  any  dividend  icarrant  for  a  greater 
or  less  amount  than  the  person  or  persons,  on  whose  behalf,  or  pretended  behalf,  such 
dividend  warrants  shall  be  made  out,  is  or  are  entitled  to,  with  intent,  tSfC.  he  shall,  upon 
conviction,  be  transported  for  seven  years. 

LXXI.  For  better  preventing  offences  in  obstructing,  de- 
[  738  1       stroying,  or  damaging  ships  or  other  vessels,  and  in  ob- 
structing seamen,  keelmen,  casters,  and  ship-carpenters, 
from  pursuing  their  lawful  occupations.(n) 

By  .33.  Geo.  3.  ch.  67.  §  5.  If  any  seaman,  keel-man,  caster,  ship-carpenter,  or  other 
person,  shall  wilfully  and  maliciously  burn  or  set  fire  to  any  ship,  keel,  or  other  vessel, 
he  shall  suffer  death  as  in  eases  of  felonv,  without  benefit  of  clergy.  By  §  4.  seamen, 
keel-men,  i^c.  willully  and  maliciously  destroying  or  damaging  any  ship,  keel,  or  other 
vessel  (otherwise  than  by  fire,)  shall  be  adjudged  guilty  of  felony,  and  shall  be  trans- 
ported  for  any  time  not  exceeding  fourteen  years,  nor  less  than  seven  years.     And  by 

(n)  Vide  No.  XXXVIII.  LVI.  and  LX.  ante. 


HISTORIA  PLACITORUM  CORONA.  738 

$  8.  it  ts  provided,  that  no  person  or  persons  shall  be  prosecuted  by  virtue  ortliis  act,  for 
any  of  the  offences  aforesaid,  unless  such  prosecution  be  commenced  twelve  calendar 
months  after  the  offence  committed. 

LXXII.  For  granting  to  his  Majesty  certain  stamp  duties  on  inden- 
tures of  clerkships  to  solicitors  and  attorneys  in  any  of  the  courts 
in  England  therein  mentioned. 

By  34  Ceo.Z.  ch.  14.  ^14.  If  any  person  shall  counterfeit,  Sfc.  any  seal,  stamp,  or  mark, 
to  resemble  any  seal,  stamp,  or  marlc  directed  by  this  act,  or  shall  utter,  vend,  or  sell  any 
vellum,  parchment,  or  paper  liable  to  such  stamp  duty,  with  such  counterfeit  stamp  or 
mark  thereupon,  knowing,  &fc.  he  shall  suffer  death,  as  in  cases  of  felony,  without  bene- 
fit of  clergy. 

LXXIII.  For  taking  of  special  bail  in  actions  and  suits  depending 
in  court  o(  coynmon-pleas^,  of  the  county  palatine  of  Lancaster. 

By  34  Geo.  3.  ch.  46.  §  5.  Personating  ball,  ^c.  is  made  felony,  upon  the  same  prin- 
ciple as  that  for  the  county  palatine  of  Chester,  abstracted  ante,  No,  LVII. 

LXXIV.  To  enable  petty  officers  in  the  navy,  seamen,  non-commis- 
sioned officers  of  marines,  and  mariners,  serving  in  his  Majesty^s 
navy,  to  allot  part  of  their  pay  for  the  maintenance  of  their  wives 
and  families.(o) 

By  35  Geo.  3.  ch,  28.  §  30.  If  any  person  shall  falsely  make,  forge,  or  counterfeit,  or 
cause,  or  procure  to  be  falsely  made,  forged,  or  counterfeited,  or  willingly  act,  S^c.  any 
declaration  or  order  for  payment,  or  any  certificate  or  receipt  therein  Ijefore  described, 
or  mentioned  ;  or  shall  utter,  ^c.  he  shall  be  adjudged  guilty  of  felony,  and  shall  suffer 
death  as  a  felon,  without  benefit  of  clergy, 

LXXV.  For  granting  to  his  Majesty  several  additional  duties  on 
stamped  vellum,  parchment, and  paper:  and  forrepealing  a  certain 
exception  as  far  as  relates  to  bonds  given  as  security  for  the  pay- 
ment of  one  hundred  pounds  or  under,  contained  in  an  act  of  the 
twenty-third  year  of  his  present  Majesty^s  reign. 

By  35  Geo.  3.  ch.  30.  §  4  If  any  person  shall  counterfeit,  ^c.  any  stamp  to  resemble 
any  stamp  directed  or  allowed  to  be  used  by  tliis  aet,  or  shall  counterfeit  or  resemble  the 
impression  of  the  same;  or  shall  utter,  vend,  sell,  use,  ^'C.  he  shall  suffer  death  as  in  cases 
of  telony,  without  benefit  of  clergy, 

LXXVI.  For  granting  to  his  Majesty  a  duty  on  certificates  issued 
for  using  hair-powder. 

By  35  Geo.  3.  ch.  49.  §  31.  If  any  person  shall  counterfeit,  S^c,  any  stamp  or  mark, 
directed  or  allowed  to  be  used  by  this  act;  or  shall  counterfeit  or  resemble  the  impressiou 
of  the  same;  or  shall  utter,  vend,  sell,  use,  Sjc.  he  shall  suffer  death  as  in  cases  of  felony, 
without  benefit  of  clergy. 

LXXVII.  For  granting  to  his  Majesty  certain  additional  duties  on 

receipts. 

By  35  Geo.  3.  ch.  55.  §  17.     If  any  person  shall  counterfeit,  S^c.  any  stamp  or  mark, 
directed  or  allowed  to  be   used,  or  provided,  made,  or  used  in  pursuance  of 
31  Geo.  3.  ch.  35.(p)  or  this  act,  or  shall  counterfeit  or  resemble  the  impression   f  739  1 
of  the  same;   or  shall  utter,  vend,  sell,  expose  to  sale,  or  use,  Sfc.  he  shall  be 
adjudged  a  felon,  and  suffer  death  as  in  cases  of  felony  without  benefit  of  clergy. 

(o)  Vide  No.  LXVII.  and  LXVIII.  ante, 
(p)  Vide  No.  LXV.  ante. 


739  HISTORIA  PLACITORUM  CORONA. 

LXXVIII.  For  granting  to  his  Majesty  certain  stamp  duties  on  sea 

insurances. 

By  35  Geo.  3.  ch.  63.  ^  23.  If  any  person  sliall  counterfeit,  ^c.  any  stamp  or  mark, 
direcled  or  allowed  to  be  used,  in  pursuance  of  this  act,  or  shall  counterfeit  or  resemble 
the  impression  of  the  same;  or  shall  utter,  vend,  sell,  expose  to  sale,  or  use,  S^c.  he  shull 
be  adjudged  a  felon,  and  shall  Butfer  death  as  in  cases  of  felony,  without  benefit  of 
clergy. 

LXXIX.  For  making  part  of  certain  principal  sums  or  stock  and 
annuities  raised  or  created,  or  to  be  raised  or  created  by  the  par- 
liament of  the  kingdom  of  Ireland,  on  loans  for  the  use  of  the 
government  of  that  kingdom,  transferable,  and  the  dividends  on 
such  stock  and  annuities  payable  at  the  Bank  of  England,  ^'C.{q) 

By  35  Geo.  3.  ch.  66.  §  3,  4,  5,  6,  7,  8,  9.  Persons  forging,  altering,  or  uttering,  S(C. 
receipts  or  debentures,  SfC.  or  forging  letters  of  attorney  or  other  authority  or  instrument 
to  transfer,  assign,  sell,  or  convey  any  stock,  c^c.  or  personating  proprietors ;  or  forging 
dividend  warrants,  Sfc.  or  (being  officers  of  the  bank)  embezzling  notes,  Sfc.  or  making 
transfers  in  the  names  of  any  other  person  or  persons,  than  the  proprietor  or  proprietors, 
Sfc.  or  forging  transfers,  Sfc.  or  making  false  entries  in  the  books  of  the  Bank  of  Eng. 
laud,  with  intent  to  defraud  the  governor  and  company  of  the  Bank  of  England,  or  any 
other  body  politic  or  corporate,  or  any  person  or  persons  whatsoever,  shall  be  deemed 
guilty  of  felony,  and  shall  suffer  death,  without  benefit  of  clergy. 

By  §  10.  Clerks,  Sfc.  of  the  Bank  making  out  false  dividend  warrants,  to  be  trans- 
ported for  seven  years. 

LXXX.  For  rendering  more  effectual  an  act,  passed  in  the  first  year 
of  the  reign  of  King  James  the  First,  intituled,  i:?/i  act  to  restrain 
all  persons  fro7)i  marriage  until  their  former  wives  and  former 
husbands  be  dead. 

By  35  Geo.  3.  ch,  67.  §  1.  Persons  convicted  in  England  of  bigamy  are  subject  to 
the  penalties,  pains,  and  punishments  as,  by  the  laws  now  in  force,  persons  are  subject 
and  liable  to,  who  are  convicted  of  grand  or  petit  larciny:  and  by  §  2.  if  they  shall  be  at 
large  within  Great  Britain,  without  some  lawful  cause,  before  the  expiration  of  the 
term  for  which  they  shall  be  ordered  to  be  transported,  they  shall  be  guilty  of  felony, 
and  shall  suffer  death,  without  benefit  of  clergy. 

By  ^  3.  If  found  at  large  in  Great  Britain,  after  order  of  transportation,  they  may  be 
tried  either  in  the  county  where  they  had  been  convicted,  or  in  that  in  which  they  are 
apprehended  and  taken. 

LXXXI.  For  establishing  a  more  easy  and  expeditious  method  for 
the  punctual  and  frequent  payment  of  the  wages  and  pay  of  cer- 
tain otticers  belonging  to  His  Majesty's  navy.(r) 

By  35  Geo.  3.  ch,  94.  §  34.  If  any  person  shall  falsely  make,  forge,  Sfc.  or  willingly 
act  and  assist,  Sfc.  or  shall  utter  and  publish  as  true,  knowing,  Sfc.  any  talse,  forged,  or 
counterfeited  order,  bill,  extract,  or  certificate,  S(c.  for  the  purpose  of  defrauding  the 
public,  or  any  commissioned  officer,  ^c.  he  shall  be  adjudged  guilty  of  felony,  and  shall 
sutler  death  as  a  felon,  without  benefit  of  clergy.  • 

LXXXII.  To  prohibit,  for  a  limited  time,  the  making  of  starch, 
hair-powder,  and  blue,  from  wheat,  and  other  articles  of  food; 
and  for  lowering  the  duties  on  the  importation  of  starch,  and  of 
other  articles  made  thereof. 

By  36  Geo.  3.  ch.  6.  §  13.  If  any  person  shall  forge,  Sfc.  any  stamp  or  seal,  to  rescm- 
ble,  ^-c.  or  counterfeit  the  impression,  SfC.  he  shall  be  adjudged  a  felon,  and  shall  suffer 
death  as  in  cases  of  felony,  without  benefit  of  clergy. 

iq)   Vide  No.  LXXXVII.  post. 

(r)  Vide  No.  LXVII.  LXVIII.  and  LXXIV.  ante. 


HISTORIA  PLACITORUM  CORONA. 


740 


LXXXIII.  For  the  safety  and  preservation  of  his  Majesty^s  person 
and  government  against  treasonable  and  seditious  practices  and 
attempts. 

By  36  Geo.  3.  ch.  7.  §  1.  Persons  who  shall  compass,  devise,  S^c.  the  death,  restraint, 
ifc.  of  his  Majesty  or  liis  heirs,  or  to  depose  them,  or  to  levy  war,  or  to  compel  a  change 
of  measures,  SfC,  to  be  deemed  traitms,  and  slialj  sutfer  pains  .of  death,  and  also  lose 
and  forfeit  as  in  cases  of  high  treason.  By  ^  2.  Persons  in  England  who  shall  by 
writing,  SfC.  incite  or  stir  up  the  people  to  hatred  or  contempt  ot  bis  Majesty,  or  the 
government,  Sfc.  shall  be  guilty  of  high  misdemeanors;  and  for  a  second  offence  may  be 
punished  as  in  the  cases  of  high  misdemeanors,  or  banished  or  transported  for  seven 
y^ars.  And  by  §  3.  Persons  banished  or  transported  found  at  large  within  Great  Bri- 
tain, without  some  lawful  cause,  before  the  expiration  of  the  term  for  which,  A-c.  shall 
suffer  death,  as  in  cases  of  felony,  without  lienefit  of  clergy :  And  such  persons  may  be 
tried  in  any  county,  ^'c  either  whereapprehended  and  taken,  or  from  whejice  they  were 
ordered  to  be  banished  or  transported;  and  a  certificate  of  the  conviction  shall  be  suffi. 
cient  proof,  SfC.  i 

LXXXIV.  For  the  more  effectually  preventing  seditious  meetings 

and  assemblies. 

By  36  Ceo.  3.  ch.  8.  §  4.  If  any  persons,  exceeding  the  number  of  fifty,  being  assem- 
bled contrary  to  the  provisions  lierein  contained,  and  being  required  or  commanded  by 
any  one  or  more  justice  or  justices  of  the  peace,  or  by  the  sheriff  of  the  county,  or  his 
under-sheriff,  or  by  the  mayor,  Sfc.  where  such  assembly  shall  be,  by  proclamation  to  be 
made  in  the  king's  name,  in  the  form  in  this  act  directed,  to  disperse  themselves,  and 
peacfeably  to  depart  to  their  habitations,  or  to  their  lawful  business,  shall,  to  the  number 
of  twelve,  or  more,  notwithstanding  such  proclamation  made,  remain  or  continue  to- 
gether by  the  space  of  one  hour  after  such  command  or  request  made  by  proclamation, 
S(c.  they  shall  be  adjudged  felons,  and  shall  suffer  death,  as  in  case  of  felony  without 
benefit  of  clergy. 

LXXXV.  For  repealing  certain  duties  on  legacies  and  shares  of 
personal  estates,  and  for  granting  other  duties  thereon,  in  certain 
cases. 

By  36  Geo.  3.  ch.  52.  §  40.  If  any  person  shall  counterfeit  or  forge,  S(c.  any  stamp 
directed  or  allowed  to  be  used  or  provided  in  pursuance  of  this  act;  or  shall  counterfeit 
or  resemble  the  impression  of  the  same,  SfC.  or  shall  utter,  vend,  sell,  expose  to  sale,  or 
use,  ^c.  he  shall  be  adjudged  a.  felon,  and  shaU  auffer  deatlijaa  in  case  of  felony,  without 
benefit  of  clergy.  1  w(  *  ','^'i    ■    (  *    i  <    i  w   '     l'»     J  i 

,      /•.•  '  ■-  ?,| .:  .  •  •;  ■  * ;  J  '-    :  -■"  J  ■ ...  ■ , 

LXXXVL  For  the  better  collection  of  the  duty  on  hats. 

.  [This  slat,  repeals  part  of  24  Geo,  3.  aess.  2.  c.  51,  abstracted  ante.,  p.  732.] 
By  36  Geo.3.  ch.  125.  §  19.  If  any  person  shall  counterfeit  or  forge,  Sfc.  any  stamp 
or  mark  directed  to  be  allowed  or  used,  or  provided,  made,  or  used,  in  pursuance  of  this 
act,  or  shall  counterfeit  or  resemble  the  impression  of  tlie  same;  or  shall  utter,  vend, 
sell,  or  expose  to  sale,  Sfc.  any  piece  of  silk,  linen,  S(e.  with  such  counterfeit  mark  or 
stamp  thereon,  knowing,  SfC.  or  shall  privately  or  fraudulently  use  any  stamp,  Sfc.  he 
shall  be  adjudged  a  felon,  and  shall  suffer  death  as  in  cases  of  felony,  without  benefit  of 

LXXaVII.  For  making  certain  annuities,  created  by  the  parliament 
of  the  kingdom  of  Ireland,  transferable,  and  the  dividends  thereon 
payable,  at  the  Bank  of  England:  and  for  the  better  security  of 
the  proprietors  of  such  annuities,  and  of  the. governor  and  com- 
pany of  the  Ba7ik  of  England. (s)  ■  ;■  r  V 

By  37  Geo.  3.  ch.  46.  §  3,  4,  5,  6,  7,  8,  9.  Persons  forging,  altering,  SfC.  receipts  or 
debentures;  or  forging  letters  of  attorney,  Sfc.  or  personating  proprietors;  or  forging  or 


VOL.  I. — 60 


(«)  Vide  No.  LXXIX.  ante. 


740  IIISTORIA  PLACITORUM  CORONiE. 

uttering  forged  dividend  warrants,  S^c.  or  officers  of  the  bank  embezzling  notes,  Sfc.  or 
making  transfers  in  other  than  proprietors  names,  ^c.  or  forging  or  uttering  forced 
transfers,  ^c.  or  making  false  entries  in  the  books  of  the  Bunk  of  England,  «.^c.  with 
intent  to  defraud  the  governor  and  company  of  the  said  bank,  or  any  other  body  politic 
or  corporate,  or  any  person  or  persons  wliatsocvcr,  shall  be  deemed  guilty  of  felony,  and 
fshall  suffer  death,  without  benefit  of  clergy.  By  §  10.  Officers  of  the  bank  making  out 
false  dividend  warrants^  to  be  transported  for  stven  years. 

LXXWIII.  For  the  better  prevention  and  punishment  of 
\_  741  J     attempts  to  seduce  persons  serving  ni  his  Majesty^ s  forces^ 
by  sea  or  land,  from  their  duty  and  allegiance  to  his  Ma- 
jesty,  or  to  incite  them  to  mutiny  or  disobedience. 

Vide  No.  XCIV.  post. 

By  37  Geo.  3.  ch.  70.  §  1.  Any  person  attempting  to  seduce  any  sailor  or  soldier  fronn 
his  duty,  or  inciting  him  to  mutiny,  ^c.  to  be  adjudged  guilty  of  felony,  and  to  suffer 
death  as  in  cases  of  felony,  without  benefit  of  clergy.  By  §  4.  To  continue  and  be  in 
force  until  the  expiration  of  one  month  after  the  commencement  of  the  then  next  session 
of  parliament.  Continued  for  a  limited  time  by  38  Geo.  3.  ch.  6.  And  further  continued 
by  39  Geo.  3.  ch.  4.  till  six  weeks  after  the  commencement  of  tlic  then  next  session. 

LXXXIX.  For  more  etlectnally  restraining  intercourse  with  the 
crews  of  certain  of  his  Majesfy's  ships  now  in  a  state  of  mutiny 
and  rebellion,  and  for  the  more  effectual  suppression  of  such  tnu- 
tiny  and  rebellion. 

^'ide  No.  XCIV.  post. 

By  37  Geo.  3.  ch.  71.  §  3.  Persons  communicating  with  the  crew  or  assisting  them 
shall,  on  conviction  thereof,  be  adjudged  guilty  of  felony,  and  shall  suffer  ^caih  as  in 
cases  of  felony,  without  benefit  of  clergy:  And  by  §  4.  All  persons  voluntarily  remain- 
ing  on  board  after  knowledge  of  the  declaration  therein  mentioned,  shall  be  adjudged 
guilty  of  piracy  and  felony,  and  shall  suffer  such  pains  of  death  and  loss  of  lands,  goods, 
and  chattels,  as  any  pirates  or  felons  by  virtue  of  an  act,  made  in  the  eleventh  year(t) 
of  King  William  the  Third,  intituled,  An  act  for  the  more  effectual  suppression  of  piracy, 
or  any  other  ael,  ought  to  suffer.  By  ^  9.  To  be  in  force  until  the  expiration  of  one 
montii  after  the  commencement  of  the  then  next  session  of  parliament 

XC.  For  granting  to  his  Majesty  certain  stamp-duties  on  the  seve- 
ral tnatters{u)  therein  mentioned,  and  for  better  securing  the 
duties  on  certificates  to  be  taken  out  by  solicitors,  attornies,  and 
others,  practising  in  certain  courts  of  justice  in  Great  Britain. 

By  37  Geo.  3.  ch.  90.  §  5.  If  any  person  shall  counterfeit,  ^c.  any  stamp  directed  or 
allowed  to  be  used  by  this  act,  or  shall  counterfeit  or  resemble  the  impression  of  the 
same,  with  intent,  S^c.  or  shall  utter,  vend,  or  sell,  any  vellum,  S^c.  witli  such  counterfeit 
stamp  or  mark  thereupon,  knowing  the  same  to  be  counterfeit,  or  shall  privately  or 
fraudulently  use  any  stamp  directed  or  allowed  to  be  used  by  this  act,  with  intent,  ifc. 
he  shall  be  adjudged  a  felon,  and  shall  suffer  death  as  in  cases  of  felony,  without  benefit 
of  clergy. 

(t)  So  in  the  purview  of  stat.  37  Geo.  3.  ch.  71 ;  but  mentioned  11  &  12  W.  3.  c.  7.  in 
the  margin,  which  is  right,  as  appears  by  4  Blac.  Com.  72,  and  the  several  statute 
books  of  Haickins,  Rvjfhead,  and  Runnington.  If  a  statute  be  recited  as  of  the  fourth 
year  of  the  reign,  i^c.  and  it  appears  to  have  been  made  in  tJie  fourth  and  fifth  years, 
<^-c.  the  variance  is  fatal.  Rann  v.  Green,  Coxcp.  474.  Vide  also  Rex  v.  Trelawney, 
1  T.  R.  222,  and  Watson  v.  Shaw  and  others,  2  T.  R.  654. 

(u)  Promissory  Notes  are  parcel  of  these  matters.  Vide  No.  LXV,  &.  LXXVII,  ante, 
and  also  No.  CVI,  post. 


HISTORIA  PLACITORUM  CORONA.  741 

XCI.  For  granting  to  his  Majesty  an  additional  stamp  duty  on  deeds. 

By  37  Geo.  3.  f A.  111.  §  5.  If  any  person  shall  counterfeit,  ^c.  any  stamp  or  mark, 
directed  or  allowed  to  be  used  by  this  apt,  or  shall  counterfeit  or  resemble  the  impression 
of  the  same,  with  intent,  &jc.  or  shall  utter,  vend,  or  sell,  any  vellum,  parchment,  or 
paper,  with  such  counterfeit  mark  or  stamp  thereupon,  knowino^,  <^c.  or  shall  fraudu- 
lently Ur^e  any  stamp  or  mark  directed  or  allowed  to  be  used  by  this  act,  with  intent,  A-c. 
he  shall  be  adjudged  a  felon,  and  shall  suffer  death  as  in  cases  of  felony,  without  benefit 
of  clergy. 

XCII.  For  the  better  preventing  the  forging  or  counterfeiting  the 
names  of  ivitnesses  to  letters  of  attorney,  or  other  authorities  or 
instruments,  for  tlie  transfer  oi stocks  or  funds  which  now  are  or 
by  any  act,  or  acts  of  parhament  sliall  hereafter  be  made 
transferable  at  the  Bank  of  England,  or  for  the  transfer  f  742  "I 
of  any  part  of  the  capital  stock  of  the  governor  and  com- 
pany of  the  Bunk  of  England  caWed  bank  stock;  or  any  part  of 
the  stoc/cs  or  funds  under  the  management  of  the  South  Sea  Com- 
pany, or  East  India  Company;  or  for  the  receipt  of  dividends,  4'c. 

By  37  Geo.  3.  ch.  122.  §  1.  If  any  person  shall  falsely  make,  forge,  Sfc.  the  name  or 
names,  hand-writing,  or  hand- writings,  of  any  witness  or  witnesses  attesting  the  execu- 
tion of  any  letter  of  attorney,  or  other  authority,  or  instrument,  to  transfer,  &c.  or  shall 
utter,  or  publish,  as  true,  any  such  letter  of  attorney,  or  other  authority,  or  instrument 
^•c.  knowing  such  name  or  handwriting  to  be  false,  forged,  or  counterfeited,  he  shall  be' 
adjudged  guilty  of  felony,  and  shall  be  transported  for  seren  years,  or  shall  be  adjudged 
to  suffer  such  lesser  punishment  as  the  court,  before  whom  such  offender  shall  be  tried 
shall  think  fit  to  award. 

XCIII.  To  prevent  the  counterfeiting  any  copper-coin  in  this  realm 
made,  or  to  be  made,  current  by  proclamation,  or  any  foreign  gold 
or  silver  coin;  and  to  prevent  the  bringing  into  this  realm,  or 
uttering,  any  counierieil  foreign  gold  or  silver  coin. 

By  37  Geo.  3.  ch.  126.  §  4.  If  any  person  shall  utter  or  tender  in  payment,  or  give 
in  exchange,  or  pay  or  put  off  any  such  false  or  counterfeit  coin  as  aforesaid,  resembling 
or  made  with  intent  to  resemble  or  look  like,  any  gold  or  silver  coin  of  any  foreign 
prince,  state,  or  country,  or  to  pass  as  such  foreign  coin,  knowing  the  same  to  be  false 
or  counterfeit,  he  shall  suffer  six  months  imprisonment,  and  find  sureties  for  Jiis  good 
behaviour  for  six  months  more;  and  if  he  shall  be  convicted  a  second  time  for  the  like 
offence,  he  shall  suffer  two  years  imprisonment,  and  find  sureties  for  his  good  behaviour 
for  two  years  more:  And  if  he  shall  afterwards  offend  a  third  time,  in  like  manner  he 
shall  be  adjudged  to  be  guilty  of  felony,  without  benefit  of  clergy. 

XCIV.  To  enable  his  Majesty  more  easily  and  effectually  to  grant 
conditional  pardons  to  persons  under  sentence  by  nuval  courts 
martial,  and  to  regulate  imprisonment  under  such  sentences. 

Vide  No.  LXXXVIII.  and  LXXXIX.  ante,  and  also  No.  Cll.post. 

By  37  Geo.  3.  ch.  140.  §  1.  If  his  Majesty  shull  extend  his  mercy  to  persons  liable  to 
death  by  the  sentence  of  a  naval  court  martial,  a  justice  of  the  king's  bench,  or  common 
pleas,  or  a  baron  of  the  exchequer,  may,  on  notification  from  the  secretary  of  state,  allow 
the  benefit  of  a  conditional  pardon  as  if  it  had  passed  under  the  great  seal,  and  shall 
make  orders  accordingly :  And  by  §  6.  The  laws  touching  the  escape  of  felons  under 
sentence  of  death  shall  apply  to  offenders  under  like  sentence  by  a  naval  court,  and  to 
all  persons  aiding,  abetting,  or  assisting  in  any  such  escape,  if  the  offender  shall  have 
been  allowed  the  benefit  of  a  conditional  pardon. 


742  HISTORIA  PLACITORUM  CORONA. 

XCV.  For  granting  to  his  Majesty  an  aid  and  contribution  for  the 
prosecution  of  the  war. 

By  38  Geo.  3.  ch.  16.  §  95.  Persons  forging  or  altering  certificates,  receipts,  or  dupli- 
cates, &c.  or  knowingly  uttering  or  publishing  them  as  true,  with  intent,  &c.  shall  be 
adjudged  guilty  of  felony,  and  shall  suffer  death,  without  benefit  of  clergy.  By  §  107,  it 
is  provided,  tliat  the  present  act  may  be  altered,  varied  or  repealed  by  any  act  or  acts"i,o 
be  made  in  this  session  of  parliament.  Vide  income  act,  viz.  39  Geo.  3.  ch.  13.  which,  by 
§  1,  repeals  the  above  stat.  in  part;  but  §  36,  extends  the  power  of  it  in  other  respects, 
&c.(d) 

XCVI.  To  continue  until  the  first  day  of  August,  one  thousand 
eight  hundred,  and  until  the  end  of  the  then  next  session  of  parlia- 
ment, and  amend  an  act  made  in  the  thirty-third  year  of  the  reign 
of  his  present  Majesty,  intituled,  Jin  act  for  establishing  regula- 
tions respecting  aliens  arriving  in  this  kingdom,  or  resident 
therein,  in  certain  cases. [w) 

By  38  Geo.  3.  ch.  50.  §  24.     In  case  any  person  ordered  or  adjudged  to  be 
I    743    I    transported  in  pursuance  of  this  act,  shall  be  found  at  large  within  this  realm, 
after  sentence  of  transportation  pronounced,  he  or  she  shall  be  deemed  guilty 
of  felony,  and  shall  suffer  death  as  a  felon  without  benefit  of  clergy. 

XCVII.  For  granting  to  his  Majesty  a  duty  on  certificates  issued 
with  respect  to  armorial-bearings  or  ensigns. 

By  38  Geo.  3.  ch.  53.  §  18.  If  any  person  shall  counterfeit,  &c.  any  stamp  or  mark 
directed  or  allowed  to  be  used  or  provided,  in  pursuance  of  this  act;  or  shall  counterfeit 
or  resemble  the  impression  of  the  same,  upon  any  vellum,  parchment,  or  paper,  with 
intention  to  defraud,  &c.  or  shall  utter,  vend,  sell,  or  expose  to  sale,  any  vellum,  parch- 
ment, or  paper,  liable  to  the  said  duty,  with  such  counterfeit  mark  or  impression  there- 
upon, knowing,  &c.  or  shall  privately  or  fraudulently  use  any  stamp  directed  or  allowed 
to  be  used  by  this  act,  with  intent,  &c.  he  shall  be  adjudged  a  felon,  and  shall  suffer 
death  as  in  cases  of  felony,  without  benefit  of  clergy, 

XCVIII.  To  amend  several  laws  of  excise  relating  to  coach-makers, 
auctioneers,  beer  and  cyder  exported,  certificates  and  debentures, 
stamps  on  hides  and  s/cifis,  drawbacks  on  wines  and  sweets,  and 
ale  and  beer  licences. 

By  38  Geo,  3.  ch.  54.  §  9.  If  any  person  shall,  with  intent  to  defVaud  his  Mdjesty, 
counterfeit  or  forge,  &c.  any  debenture  in  any  case  in  which  a  debenture  is  by  any  act 
or  acts  of  parliament  relating  to  the  duties  of  excise  required  or  directed  to  be  given  or 
granted,  or  shall  knowingly  or  willingly  utter,  publish,  or  make  use  of  any  such  coun- 
terfeited or  forged  debenture,  he  shall  be  adjudged  guilty  of  felony,  and  shall  suffer  death 
as  a  felon,  and  have  execution  awarded  against  him,  as  persons  attainted  of  felony,  with- 
out benefit  of  clergy. 

By  §  10.  The  pains  of  death  imposed  by  the  9  Ann,  ch.  11.  10  Ann,  ch.  26.  and 
5  Crto.  1.  ch,  2.  relating  to  duties  on  hides  and  skins,  &c.  declared  to  be  in  force  against 
persons  who  counterfeit  stamps  provided  by  those  three  statutes,  or  in  pursuance  of  the 
acts  of  28  Geo.  3.  ch.  37.  and  1  Geo.  3.  ch.  21. {x) 

XCIX.  For  making  perpetual,  subject  to  redemption  and  purchase 
in  the  manner  therein  stated,  the   several  sums  of  money  now 

(»)  No  repeal  by  the  latter  stat.  of  the  felony  mentioned  in  the  above  act  of  38  Geo.  3. 
ch  16.  §  95. 

(ic)  Amended,  and  further  powers  given  by  stat.  38  Geo.  3.  ch.  77.  vide  33  Geo,  3. 
cA.  4. 

(a;)   Vide  No.  LIV.  ante. 


HISTORIA  PLACITORUM  CORONA.  743 

charged  in  Great  Britain  as  a  land-tax  for  one  year,  from  the 
twenty-fifth  day  of  March  one  thousand  seven  hundred  and 
ninety-eiglit.(y) 

By  38  Geo.  3.  ch  60.  §  118.  If  any  person  shall  forisre,  counterfeit,  or  alter,  &c.  any 
contract  or  contracts  for  the  sale  of  any  land-tax,  or  any  assignment  or  assignments  of 
such  contract  or  contracts,  or  of  any  portion  of  land-tax  therein  comprised,  or  any  cer- 
tificate or  certificates  of  the  commissioners  of  land-tax  or  of  supply,  or  any  chief  magis- 
trate authorized  by  this  act  to  make  out  the  same,  or  of  the  surveyor-general  of  the 
land  revenue  of  the  crown,  or  of  the  duchy  of  Cornwall,  or  any  certificate  or  receipt  of 
the  cashier  or  cashiers  of  the  governor  and  company  of  the  bank  of  England,  or  any 
certificate,  &c.  directed  by  this  act  to  be  made  out  by  the  proper  officer  to  the  commis- 
sioners for  the  affairs  of  taxes,  &c.  or  shall  wilfully  delis'gr,  <fec.  or  utter,  &-c.  he  shall  be 
adjudged  guilty  of  felony,  and  shall  suffer  death  as  in  cases  of  felony,  without  benefit  of 
clergy. 

C.  More  effectually  to  prevent,  during  the  war,  persons,  being  his 
Majesty's  subjects,  for  voluntarily  repairing  to  or  remaining  in  , 
France,  or  any  country  or  place  united  to  France,  or  occupied  by 
the  armies  of  France;  and  to  prevent  correspondence  with  such 
persons  and  with  his  Majesty's  enemies. 

By  38  Geo.  3.  ch.  79.  §  I.  If  any  subject  of  his  Majesty  shall,  during  the  war,  go,  or 
embark  to  go  to  France  or  any  place  united  thereto,  or  occupied  by  its  armies, 
he  shall  be  adjudged  guilty  of^  felony,  and  shall  suffer  death  as  in  cases  of  f  744  J 
feluny,  without  benefit  of  clergy.  By  §  4,  If  any  subject  shall  correspond  with 
any  such  other  subject  of  his  Majesty,  so  going  to,  and  remaining  in  France,  he  shall  be 
deemed  guilty  of  felony,  and  shall  suffer  death  without  benefit,  &c.  By  §  5.  If  any  subject 
of  his  Majesty  shall,  during  the  war,  correspond  with  the  persons  exercising  the  powers  of 
government  in  France,  SfC.  or  with  any  of  their  agents,  knowing  such  agent  or  agents  to  be 
employed,  &,c.  he  shall  be  adjudged  guilty  of  felony,  and  shall  suffer  death,  without  benefit, 
&c.  By  §  8.  In  ease  any  person  ordered  or  adjudged  to  be  transported  under  this  act,  shall 
be  found  at  large  within  this  realm,  after  sentence  of  transportation  pronounced,  and 
before  the  time  shall  be  expired  for  whicli  such  person  was  sentenced  to  be  transported, 
he  shall  be  deemed  guilty  of  felony,  and  shall  suffer  death,  without  benefit,  &c.  By  §  2. 
If  any  subject  of  his  Majesty  shall,  during  the  war,  knowingly  and  wilfully  hire,  let, 
engnge,  &c.  or  be  concerned  in  the  hiring,  Sfc.  any  vessel,  with  intent  that  any  of  his 
Majesty^s  subjects  should  embark  therein  with  intent  to  go  to  France,  S(c.  he  shall  be 
transported  for  any  time  not  exceeding  seven  years,  to  such  place  as  his  Majesty  in 
council  shall  direct. 

CI.  To  repeal  the  duties  imposed  by  an  act,  made  in  the  last  session 
of  parliament,  for  granting  an  aid  and  contribution  for  the  prose- 
cution of  the  war ;  and  to  make  more  effectual  provision  for  the 
like  purpose,  by  granting  certain  duties  upon  income,  in  lieu  of 
the  said  duties. 

Vide  33  G.3.  c.  22;  cA.  72. 
By  39  Geo.  3.  ch.  13.  §  32.  If  any  person  shall  give  false  evidence  on  oath  or  affir- 
mation,  or  in  any  affidavit  or  deposition,  &c.  before  the  commissioners  in  the  said  act 
mentioned,  he  shall,  upon  conviction,  be  subject  and  liable  to  such  pains  and  penalties, 
as  by  any  law  now  in  being,  persons  convicted  of  wilful  and  corrupt  perjury  are  subject 
and  liable  to.  {yy) 

(y)  Certain  duties  to  which  this  act  relates,  to  be  levied  within  one  year  from  March 
25.,  1799,  &c.  by  39  Geo.  3.  ch.  3.  See  further  on  this  subject  of  taxation,  39  Geo.  3. 
ch.G;  ch.  21;  cA.  40;  ch.  43;'  and  ch.  108. 

iyy)  ^y  ^  ^^o-  2.  cA-  25.  §  2.  Persons  guilty  of  wilful  and  corrupt  perjury,  or  subor- 
nation  of  perjury,  may  be  imprisoned  or  transported  for  seven  years;  and  if  they  escape; 
break  prison,  or  return,  Sec.  shall  suffer  death  as  felons,  without  benefit  of  clergy.  Made 
perpetual  by  9  Geo,  2.  ch,  18. 


744  HISTORIA  PLACITORUM  CORONA. 

CII.  For  remedying  certain  defects  in  the  law  respecting  offences 
committed  upon  the  high  seas. 

Vide  No.  XCIV.  ante. 

By  39  Geo.  3.  cli.  37.  §  1.  All  offences  whatever  committed  on  (be  high  seas,  shall  be 
liable  to  the  same  punishments  as  if  committed  on  shore,  and  shall  be  enquired  of,  heard, 
tried,  determined,  and  adjudged,  in  tlie  some  manner  as  treasons,  felonies,  murders  and 
confederacies,  are  directed  to  be,  by  stat.  28.  Hen.  8.  ch.  15.  And  by  §  2.  Persons  tried 
for  murder  or  nianslauglitcr,  and  tbund  guilty  of  manslaugiiter  only,  shall  be  entitled  to 
the  benefit  of  clergy,  and  be  subject  to  the  sume  punishment  as  if  committed  on  land.(z) 

CIII.  For  making  perpetual  so  much  of  an  act  made  in  the  nine- 
teenth year  of  the  reif  n  of  his  Majesty  as  relates  to  the  punish- 
ment of  burning  in  the  hand  of  certain  persons  convicted  of 
felony,  within  the  benefit  of  clergy. 

By  39  Geo.  3  ch.  45.  So  much  of  the  stat.  of  19  Geo.  3.  ch.  74.  as  relates  to  the  pun- 
ishment of  burning  offenders  convicted  of  felony,  within  the  benefit  of  clergy,  in  the 
hand,  is  made  perpetual. 

Vide  No.  XXVI.  ante,  and  39  Geo.  3.  ch.  46,  which  perpetuates  so  much  of  the  said 
stat.  of  19  Geo.  3.  ch.  74,  as  relates  to  the  lodgin<rs  of  Judges  at  county  assizes.  Vide 
also  39  Geo.  3.  ch,  51  and  52.  which  continue  (until  25th  March,  1802)  such  parts  of  said 
stat.  19  Geo.  3.  ch.  74,  tfcc.  as  relate  to  the  confinement  ofjclons  in  temporary  places,  &-c. 
or  penitentiary  houses,  &.c. 

CIV.  For  the  more  effectual  suppression  of  societies  established  for 
seditious  and  treasonable  purposes;  and  for  better  preventing 
treasonable  and  seditious  practices. 

Vide  No.  LXXXVIII,  and  LXXXIX.  ante. 
By  39  Geo.  3.  ch.  79.  §  8.  Persons  convicted,  upon  indictment,  of  the  offences 
r  745  "J  and  practices  mentioned  in  this  act,  shall  and  may  be  transported  for  the  term 
of  seven  years,  hi  the  manner  provided  by  law  for  transportation  of  offenders, 
or  imprisoned  for  any  time  not  exceeding  two  years,  as  the  court  sliall  think  fit;  and 
every  such  offender,  who  shall  be  ordered  to  be  transported,  shall  be  subject  and  liable 
to  all  laiDs{a)  concerning  offenders  ordered  to  be  transported. 

CV.    To  protect  masters  against  embezzlements  by  their  clerks  or 

servants. 

By  39  Geo.  3.  ch.  85.  If  any  servant  or  clerk  shall,  by  virtue  of  his  employment, 
receive  or  take  into  his  possession  any  money,  goods,  bond,  bill,  note,  banker's  draft,  or 
other  valuable  security  or  effects,  for  or  in  the  name  or  on  the  account  of  his  master  or 
employer,  and  shall  fraudulently  embezzle,  secrete,  or  make  away  with  the  same,  or  any 
part  thereof,  he  shall  be  deemed  to  have  feloniously  stolen  the  same  from  his  master  or 
employer,  for  whose  use,  or  in  whose  name,  or  on  whose  account  the  same  was  or  were 
delivered  to,  or  taken  into  the  possession  of  such  servant,  or  clerk.  SfC.  and  every  such 
offender,  his  adviser,  procurer,  aider,  or  abettor,  being  thereof  lawfully  convicted  or 
attainted,  shall  be  liable  to  be  transported  for  any  term  not  exceeding /o«r<ee«  years,  iu 
the  discretion  of  the  court  before  whom  such  offender  shall  be  convicted  or  adjudged. 

CVI.  For  granting  to  his  Majesty  certain  stamp  duties  on  bills  of 
exchange  and  promissory  notes  for  small  sums  of  money. 

By  39  Geo.  3.  ch.  107.  §  25.  If  any  person  shall  counterfeit  or  forge  atiy  stamp  or 
mark,  directed  or  allowed  to  be  used  by  this  act,  with  intent,  S^c,  or  shall  fraudulently 
use  any  such  stamp  or  mark,  witli  intent,  ^c.  or  shall  utter,  vend,  sell,  or  expose  to  sale, 

(2)  The  stat.  of  28  H.  8,  does  not  extend  to  offences  committed  in  creeks  or  ports 
within  the  body  of  a  county.     3  Bac,  Abr,  4th  edit.  820. 
(a)   Vide  note  under  No.  CI.  ante. 


HISTORIA  PLACITORUM  CORONA.  745 

any  vellum,  ^'c.  with  an)'  such  counterfeit  stamp  or  mark  thereupon,  knowing,  SfC.  he 
shall  be  adjudged  a  felon,  and  shall  suffer  death,  without  benefit  of  clergy. 

CVII.  For  rendering  more  commodious,  and  for  better  regulating, 
the  port  of  London. 

By  39  Geo.  3.  ch.  69.(6)  §  104.  If  any  person  shall  wilfully  and  maliciously  set  on 
fire  any  of  the  works  to  be  made  by  virtue  of  this  act,  or  any  ship  or  other  vessel  lying 
or  being  in  any  canal,  dock,  bason,  cut,  or  other  works  to  be  made  by  virtue  of  this  act, 
he  shall  be  adjudged  guilty  of  telony,  without  benefit  of  clergy.  And  persons  otherwise 
wilfully  damaging  the  works,  or  vessels,  S(C.  shall  suffer  punishment  by  fine,  imprison- 
ment,  or  transportation,  at  the  discretion  of  the  judge,  Sfc.  before  whom  such  offender 
shall  be  tried  and  convicted. 

CVIII.  For  enabling  his  Majesty  to  incorporate  by  charter  a  com- 
pany to  be  called  The  Globe  Insurance  Company,  for  insurance 
on  lives,  and  against  loss  or  damage  by  fire,  and  for  other  pur- 
poses therein  mentioned. 

,  By  39  Geo.  3.  ch.  83.(c)  §  22.  If  any  person  shall  forge  or  counterfeit  the  common 
seal  of  the  said  corporation  to  be  created  and  established  pursuant  to  this  act,  or  shall 
forge,  counterfeit,  or  alter,  any  policy,  deed,  bill,  bond,  or  obligation  under  the  common 
seal  of  the  said  corporation,  or  shall  offer  to  dispose  of,  or  pay  away  the  same,  knowing 
the  same  to  be  such ;  or  shall  demand  the  money  therein  contained,  or  pretended  to  be 
due  thereon,  of  or  from  the  said  corporation,  or  any  of  the  officers  thereof,  knowing,  i^c. 
with  intent  to  defraud  the  said  corporation,  or  any  person  or  persons  whomsoever,  he 
shall  be  deemed  guilty  of  felony,  and  suffer  as  in  cases  of  felony,  without  benefit  of 
clergy.     By  §  23.  To  be  deemed,  adjudged,  and  taken  to  be  a  public  act. 

The  Charter  mentioned  in  this  act  is  not  yet  complete,  it  being  under  the  considera- 
tion of  the  pripy  council  upon  the  attorney -general's  report. 

j 

STATUTES    RELATING    TO    FELONY   SINCE  THE    LAST   EDITION   OF    THE 

WORK. 

Defacing  the  mark  on  stores,  punishable  by  14  years  transportation.  39  4*40  Geo. 
IIL  c.  89.  ^4. 

Setting  fire  to  works  or  vessels  in  the  London  canals,  docks,  &c.  39  Geo.  III.  c.  69. 
§  104  ^  39  (^  40  Geo.  III.  c.  89.  ^  4. 

Persons  disobeying  orders  of  quarantine.     39  «Sf  40  Geo.  III.  c.  80.  §  11.  21. 

Masters  of  vessels  concealing  the  plague.     39  ^  40  Geo.  III.  c.  80.  §  16. 

Persons  escaping  from  Lazarets.     Id.  §  23. 

Forging  certificate  of  quarantine.     Id.  §  27. 

Clandestinely  conveying, goods,  letters,  &c.  from  vessels  under  quarantine.     Id.  §  28. 

Returning  from  transportation  under  39  <Sf  40  Geo.  III.  c.  89.  §  6. 

Aliens  returning  from  transportation  for  life.     43  Geo.  111.  c.  155.  §  39. 

Counterfeiting  receipts  for  contributions  under  Loan  acts.     41  Geo.  III.  c.  3.  §  24, 

Personating  pensioners,  &,c.     43  Geo.  III.  c.  119.  §  17. 

Forging  land  tax  redemption  contracts.     42  Geo.  III.  c.  116.  §  194. 

Maliciously  shooting,  stabbing,  &.c.  with  intent  to  murder,  &c.  administering  poison 
to  women  quick  with  child  to  procure  miscarriage,  &,c.  setting  fire  to  any  house,  out- 
house, &c.    43  Geo.  III.  c.  58.  §  1,  2. 


(6)  In  order  to  facilitate  the  labour  of  others,  it  has  been  judged  necessary  to  observe 
here,  that  there  are  two  of  these  numbers  in  the  statute  books,  and  that  this  act  will  be 
found  under  a  new  head,  intituled,  "PUBLIC  LOCAL  AND  PERSONAL  ACTS," 
in  p.  228,  Tol.  14.  of  Runnincrton's  edition  of  the  Statutes,  and  vol.  18,  oi Ruffhead's. 
So  as  to  the  next  ch.  which  begins  in  those  books,  p.  261. 

(c)  Vide  note  (6)  supra.  ' 


746  HISTORIA  PLACITORUM  CORONA. 

Secreting  post-office  letters,  <fec.  containing  any  security,  «tc.,  procuring  or  receiving 
the  same.     42  Geo.  III.  c.  81.  §  1-2. 

Casting  away  or  destroying  siiips.     43  Geo.  III.  c.  79.  and  c.  113. 

Counterfeiting  stamps,  &c.  in  Great  Britain.  41  Geo.  III.  c.  10.  §  8;  c.  86.  §  16;  and 
43  Geo.  III.  c.  126.  §  11;  c.  127.  §  8. 

Counterfeiting  starch  stamps  in  Great  Britain.     42  Geo.  III.  c.  14.  ^  6. 

Counterfeiting  stamps,  marks,  &lc.  on  medicine  wrappers.     42  Geo.  III.  c.  56.  ^  22. 

Forging  paper  for  bank  notes  or  engraving  bank  notes  without  authority.    41  Geo.  III. 

Forging  or  altering  foreign  bills  of  exchange.     43  Geo.  III.c.  130.  §  1.  3. 

Forging  debentures  for  teas  exported  to  Ireland.     41  Geo.  III.  c.  75.  §  7. 

Forging  certificates  of  excise.     41  Geo.  III.  c.  91.  §  5. 

Forging  post-office  franks,  &-c.     43  Geo.  III.  c.  28.  §  22. 

Damaging,  stealing  or  destroying  works  on  canals,  roads,  railways,  enclosures,  &c. 
41  Geo.  III.  c.  22.  §09.70:  c.  21.  §78;  c.  3.3.  §  71  ;  c.  72.  §  49 ;  c.  83.  §  33 ;  c,  74.  §64; 
c.  116.  §42;  c.  127.  §  112;  c.  128.  §  108;  c.  135.  §  61;  c.  136.  §21.  42  Geo.  III.  c.  32. 
§  46;  c.  19.  §33;  c.  22.  §  49.50;  r.  24.  §46.  49;  c.  58.  §45;  c.  74.  §53;  c.  112.  §53; 
c.  114.  §78,  43  Geo.  III.c.  102.  §  32;  c.  22.  §  20;  c.  33.  §  22;  c.  35.  §  82 ;  c.  49.  §47; 
c.  55.  §19;  c.  60.  §  109;  c.  88.  §  13;  c.  126.  §75;  c.  128.  §81  ;  c.  130.  §  5;  c.  72.  §  121. 

Casting  away  or  destroying  ships.     43  Geo.  III.  c.  79.  and  c.  1 13. 

Shooting  at  otlicers  of  navy  customs,  «&c.  or  firing  at  a  vessel.  45  Geo.  III.  c.  121.  §  11. 

Counterfeiting  stamps,  &cc.  in  Great  Britain.  41  Geo.  III.  c.  10.  §  8;  c.  86.  §  16k 
43  Geo.  III.  c.  126.  §  11 ;  c.  127.  §  8.     44  Geo.  III.  c.  98.  §  9.     45  Gen.  III.  c.  28.  §  8. 

Stamps  on  paper  wrappers  (inaccurately  worded  )     46  Geo.  III.  c.  112.  §  2. 

Forging  exchequer  bills.     48  Geo.  III.c.  I.  §  9. 

-Stealing  from  oyster  beds.     43  Geo.  III.  c.  144.  §  1. 

Fraudulently  obtaining  letters  containing  bank  notes.     47  Geo.  III.  St.  2.  c.  53.  §  9. 

Bank  notes,  engraving  plates.  &c.  impressions  from  which  shall  resemble  bank  notes 
or  uttering  any  paper  which  shall  resemble  bank  notes.     52  Geo.  III.  c.  138.  §  5. 

Counterfeiting  bank  tokens.  51  Geo.  III.  c.  110.  §  I.  or  bringing  counterfeit  tokens 
into  the  kingdom,  §  2. 

Forging  stamps  or  seals  for  stamping  starch.     52  Geo.  Ill,  c.  27.  §  13. 

Making  false  conies  of  entries  or  altering  &c.  register  books  of  parishes.  52  Geo.  III. 
c.  146.  §  14. 

Aiding  prisoners  of  war  to  escape.     52  Geo.  ITI.  c.  156.  §  1. 

Administering  or  taking  unlawful  oaths.     52  (weo.  III.  c.  104.  §  1. 

Aliens  returning  from  transportation  tor  life.    43  Geo.  III.  c.  155,  §  39. 

Forging  draft,  on  the  Receiver  General.     46  Geo.  III.  c.  150,  §  10. 

Forging  deeds,  wills,  securities,  receipts,  orders  for  money,  «tc.  or  uttering  the  same 
to  defraud  any  person  or  corporation.  45  Geo.  III.  c.  89,  §  1.  Altering  and  extending. 
2  Geo.U.  c.  25;  7  Geo.  II.  c.  22;  15  Geo.  II.  c.  13;  41  Geo.  Ill,  c.39. 

Forgery  of  drafts,  &c.  of  public  oifieers.  46  Geo.  III.  c.  45,  §9;  c.  142,  §  14; 
c.  150,  §  20. 

Counterfeiting  receipts  for  contributions  under  loan  acts.     41  Geo.  III.  c.  3,  §  24. 

Personating  pensioners,  &c.     43  6'co.  III.  c.  119,  §  17. 

Forging  contracts  for  land  tax  redemption.     42  Geo.  III.  c.  116,  §  194. 

Forging  lottery  tickets.     44  Geo.  III.  c.  93,  §  IL 

Disobedience  to  post-office  orders.     45  Geo.  III.  c.  10,  §  23. 

Personating  seamen  or  forging  wills  or  letters  of  attorney  of  seamen,  &c.   45  Geo.  III. 

Forgery  of  drafts,  «!tc.  of  commissioners   of  land  revenue.     50  Geo.  III.  c.  65,  §  18. 

Forger}'  of  stamps  provided  under  50  Geo.  III.  c.  35,  §  6. 

Forgery    of  certificates,   &,c.   of  commissioners    for    the   issue   of  Exchequer  bills. 

51  Geo.  III.  c.  15,  §  71. 

Destroying  stocking  or  }ac6  frames.     53  Geo.  III.  c.  16,  §  1.. 

Wilfully   dcstroving  or  demolishing  any   buildings,  engines,  or  machinery  therein. 

52  Geo.  III.  c.  130,  §  1,2. 

Embezzling  letters  by  persons  employed  by  post-office  department.  52  Geo.  III. 
c.  143,  §2-4. 

Shooting  at  or  wounding  revenue  officers.     52  Geo.  Ill,  c.  143,  §  12. 

l^orging  names  of  register,  «Scc.  of  the  High  Court  of  Admiralty.  53  Geo.  Ill, 
c.  151,  §12.      '  ' 

Forsring,  &,c.  or  altering  declaration  of  return  of  premium  on  a  policy  of  assurance, 
54  Geo.  III.  c,  133,  §  10. 


HISTORIA  PLACITORUM  CORON.E.  747 

Cutting  or  destroying  frames  and  frame-work  of  knitting  machines.  54  Geo.  III. 
c.  42. 

Tiie  52  Geo.  III.  c.  44,  §  47,  relative  to  the  punishment  of  persons  convicted  of  felony 
without  benefit  of  clergy  repealed  by  53  Geo.  III.  c.  162. 

•  Forging  certificates,  receipts,  bills  of  credit,  transfers,  powers,  &c.  made  felony. 
53  Geo.  111.  c.  41,  §26,  27;  54  Geo.  III.  c.  13,6  5;  54  Geo.  III.  c.  §  70.38;  54  Geo.  III. 
c.  86,  §  43;  54  Geo.  III.  c.  110.  §  6;   54  Geo.  HI.  c.  151,  §  16. 

Falsely  representing  the  next  of  kin  of  seamen.     55  Geo.  III.  c.  60,  §  30. 

Forging  names  of  ministers,  &c.  required  under  55  Geo.  III.  c.  60,  §  31. 

Kescuing  or  attempting  to  rescue  convicts  from  the  penitentiary.  56  Geo.  III. 
c.  63,  §  44. 

Aliens  sentenced  to  transportation  guilty  of  felony  if  found  at  large.  55  Geo.  III. 
c.  54.  §  36. 

Demolishing  engines,  &c.  belonging  to  collieries.     56  Geo.  III.  c.  125,  §.  1. 

Felons  making  their  escape  after  condemnation  to  transportion  or  being  found  at 
large  before  expiration  of  their  sentence.     56  Geo.  III.  c.  27,  §  7,  8, 16. 

Forging  stamps  under  Stamp  act.     55  Geo.  III.  c.  184,  §  7. 

Forging  newspaper  stamps.     55  Geo.  III.  c.  185,  §  6. 

Forging  gold  and  silver  plate  duty  marks.     55  Geo.  III.  c.  185,  §  7. 

Forging  letters  of  attorney  or  wills  of  seamen,  or  knowingly  uttering  the  same. 
55  Geo.  III.  c.  60,  §  32. 

Forging  cerlicates,  powers,  tfcc.  for  half-pay  of  naval  officers.   56  Geo.  III.  c.  101,  §  5. 

Personating  seamen,  &.c.     55  Geo.  III.  c  60,  §  32. 

Forging  certificates,  bills,  &c.  for  pay  of  navy  officers.     57  Geo.  III.  c.  20,  §  10. 

Forging,  altering,  &,c.  certificates,  &,c.  of  commissioners  for  issuing  Exchequer  bills 
for  carrying  public  works,  &.c.     57  Geo.  III.  c.  34,  §  63. 

Forcibly  entering  any  house,  &c.  with  intent  to  destroy,  &.c.  any  machinery  or  goods 
therein.     57  Geo.  III.  c.  126,  §  2. 

Persons  falsely  assuming  the  names  or  character  of  those  entitled  to  prize-money  or 
pay  in  order  to  receive  the  same.     57  Geo.  III.  c.  127,  §  4;  59  Geo.  III.  c.  56,  §  18. 

An  act  for  more  effectually  preventing  seditious  meetings  and  assemblies,  to  continue 
in  force  until  the  end  of  the  session  of  parliament  next  after  five  years  from  the  passing 
of  the  act. 

The  act  of  60  Geo.  III.  c.  6. 6  8.  11. 14.  §  8.  That  if  any  person  or  persons  shall  attend 
any  meeting  whatever  holden  for  the  pretext  of  deliberating  upon  any  public  grievance 
or  upon  any  matter  or  thing  relating  to  any  trade,  manufacture,  business  or  profession, 
or  upon  any  matter  in  church  or  state,  or  of  considering,  proposing,  or  agreeing  to  any 
petition,  complaint,  remonstrance,  declaration,  resolution,  or  address,  upon  the  subject 
thereof,  contrary  to  the  provisions  of  this  act  it  shall  be  lawful  for  any  one  or  more  jus- 
tice or  justices  of  the  peace  in  and  for  any  county  or  the  sheriff"  or  under-sheriff"  of  any 
county  or  the  mayor  or  head  officer  or  any  justice  of  the  peace  of  any  city  or  town  cor- 
porate within  which  any  such  meeting  shall  be  held  to  make  or  cause  to  be  made  pro- 
clamation in  the  king's  name  in  the  form  directed  in  this  act  commanding  any  person 
so  Ufilawfully  attending  any  such  meeting  immediately  and  peaceably  to  depart  there- 
from :  and  if  any  person  or  persons  so  ordered  to  depart  as  aforesaid  shall  not  upon  such 
proclamation  depart  from  any  such  meeting  within  the  space  of  a  quarter  of  an  hour  after 
such  proclamation  made  that  then  and  in  every  such  case  every  such  person  so  continu- 
ing  and  not  departing  as  aforesaid  shall  upon  being  thereof  lawfully  convicted  be  adjudged 
to  be  guilty  of  felony  and  shall  be  liable  to  be  transported  for  any  period  not  exceeding 
seven  years. 

§  ll.  That  it  shall  be  lawful  for  any  one  or  more  justice  or  justices  of  the  peace  in 
and  for  any  county  or  for  the  sheriff"  or  under-sheriff"  of  any  county  or  for  the  mayor  or 
other  head  officer  or  any  justice  of  the  peace  of  any  city  or  town  corporate  within  which 
any  meeting  shall  be  held  or  persons  shall  assemble  for  the  purpose  of  holding  any  meet- 
ing  contrary  to  the  provisions  of  this  act,  or  where  any  person  or  persons  not  entitled  to 
attend  any  meeting  or  assembly  as  aforesaid,  shall  refuse  or  neglect  to  depart  therefrom 
for  the  space  of  a  quarter  of  an  hour  after  such  proclamation' made  as  aforesaid  to  make 
or  cause  to  be  made  such  proclamation  in  the  king's  name  in  the  manner  and  form  herein- 
after directed  to  command  all  persons  there  assembled  to  disperse  themselves  and  peacea- 
bly to  depart  to  their  habitations  or  to  their  lawful  business  and  if  any  such  persons  so 
assembled  as  aforesaid  shall,  to  the  number  of  twelve  or  more,  notwithstanding  such  pro- 
clamation made,  continue  together  by  the  space  of  half  an  hour  after  such  proclamation 
made,  that  then  and  in  every  such  case  every  person  so  continuing  being  thereof  legally 


748  HISTORIA  PLACITORUM  CORONA. 

convicted  shall  be  adjudged  guilty  of  felony  and  be  liable  to  be  transported  for  any  term 
not  exceeding  seven  years, 

§  14.  That  if  any  person  or  persons  do  or  shall  with  force  and  arms  wilfully  and  know- 
ingly  oppose,  obstruct,  or  in  any  manner  wilfully  and  knowingly  let,  hinder,  or  hurt  any 
justice  of  the  peace  or  other  persons  authorized  as  aforesaid,  or  any  person  acting  in  aid 
or  assistance  of  any  justice  of  the  peace  who  shall  attend  or  disperse  any  such  meeting 
as  aforesaid,  or  shall  be  going  to  attend  or  disperse  any  such  meeting,  or  any  justice  of 
the  peace  or  peace  officer  or  any  person  or  persons  acting  in  aid  or  assistance  of  any  jus- 
tice of  tlie  peace  or  other  officer  who  shall  begin  to  proclaim  or  be  going  or  endeavouring 
to  make  any  proclamation  authorized  or  directed  to  be  made  under  the  provisions  of  this 
act,  whereby  such  proclamation  shall  not  be  made :  and  also,  if  any  persons  so  being 
assembled  as  aforesaid  to  whom  any  such  proclamation  as  aforesaid  should  or  ought  to 
have  been  made  of  the  same  had  not  been  hindered  as  aforesaid,  shall  to  the  number  of 
twelve  or  more  continue  together  and  not  disperse  themselves  within  half  an  hour  after 
such  let  or  hindrance  so  made  having  knowledge  of  such  let  or  hindrance  so  made;  and 
also  if  any  person  so  being  at  any  sucli  assembly  as  aforesaid  shall  with  force  and  arms 
wilfully  and  knowingly  oppose,  obstruct,  or  in  any  manner  wilfully  and  knowingly  let, 
hinder,  or  hurt  any  justice  of  the  peace  or  other  magistrate  or  any  peace  officer  or  other 
person  acting  in  their  aid  or  assistance  in  the  arresting,  apprehending,  or  taking  into 
custody  or  detaining  in  execution  of  any  of  the  provisions  of  this  act  any  person  or  per- 
sons or  endeavouring  so  to  do  that  then  and  in  every  such  case  every  person  so  offending 
being  thereof  legally  convicted  shall  be  adjudged  guilty  of  felony  and  be  liable  to  be 
transported  for  any  term  not  exceeding  seven  years. 

Cultinar  aicay  or  defacing  buoy-ropes,  &c.  transportation  for  not  exceeding  14  years. 
14-2  Geo.  IV.  c.  76.  ^  G. 

Engraving,  S^-c.  on  any  plate  for  producing  an  impression  of  all  or  any  part  or  engrav- 
ing on  any  plate  any  resemblance  of  ground-work  of  a  bank  of  England  note,  or  using 
such  plate  or  having  such  plate  in  custody  or  possession;  or  uttering  any  impression 
from  it:  transportation  for  14  years.     1  Geo.  IV.  c.  92.  §  1.2. 

The  felonies  which  are  capitally  punishable  by  39  Eliz.  r.  9;  4  Geo.  I.e.  11  ;  5  Geo. 
II.  c.  30;  and  8  Geo.  II.  c.  20 ;  are  made  punishable  by.  transportation  for  life  or  not 
less  than  7  years  by  1  Geo.  IV.  c.  115. 

Privately  stealing  to  the  value  of  5s.  and  under  \5l.  Transportation  for  life,  or  not 
less  than  seven  years.     1  Geo.  IV.  c.  117. 

Turnpike  gates,  maliciously  destroying,  &c.  Seven  years  transportation.  3  Geo.  IV. 
c.  126.  §  128. 

Forging  certificate,  &.c.  of  commissioners  for  issuing  exchequer  bills.  3  Geo.  IV.  c.  86. 
§54. 

Forging  certificates  under  superannuation  act.     3  Geo.  IV.  c.  113.  §  23. 

Forgery  of  handwriting,  &c.  of  the  accountant  general,  &,c.  of  the  court  of  exchequer 
to  a  certificate  to  receive  suitor's  effects  in  the  beink,  &,c. ;  or  fraudulently  claiming  pay- 
ments.    1  Geo.  IV.  c.  35.  §  27. 

Forging  Sfc.  certificate  &c.  under  1  &  2  Geo.  III.  c.  73.  §  15. 

Forging  Sfc.  receipts  or  certificates  for  annuity  under  3  Geo.  IV.  c.  51.  §  15. 

Procuring  others  to  utter  forged  letters  of  attorney,  &c.  or  to  apply  for  pay  on  probates 
of  forged  wills  of  seamen  or  marines.    1  &,  2  Geo.  IV.  c.  49.  §  4. 

Any  person  or  persons  pulling  down  plucking  up  or  otherwise  destroying  or  dam. 
aging  turnpike  gates  or  any  chain  &,c.  belonging  thereto  or  any  toll  houses  or  weigti- 
ing  machines  or  rescuing  persons  in  custody  for  any  of  these  offences,  to  be  adjudged 
guilty  of  felony  and  to  be  transported  for  seven  years.     3  Geo.  IV.  c.  126.  §  128. 

For  general  enactments  relating  to  felonies,  see  6  Geo.  IV.  c,  25.  materially  altering 
the  law  in  many  particulars. 

Assaulting  custom  house  officer  made  felony  and  punished  with  transportation  for 
seven  years  or  imprisonment  with  hard  labour  not  exceeding  three  years.  6  Geo.  IV. 
c.  108.  §  59.  '  • 

Bankrupt  not  surrendering  and  submitting  to  be  examined  &c.  or  removing  or  em- 
bezzling to  the  value  of  lOZ.  to  be  transported  for  life  or  not  less  than  seven  years,  or  be 
imprisoned  only  or  imprisoned  with  hard  labour  for  not  exceeding  seven  years.  €  Geo.  IV. 
c.  80.  ^  143. 

Entering  and  taking  trees  plants  &c.  out  of  orchards  gardens  and  nursery  grounds  &-c. 
6  Geo.  IV.  c.  127. 

Permitting  vessels  to  depart  out  of  quarantine  without  authority,  giving  false  certifi- 
cate &c.    6  Geo.  IV.  c.  78.  ^  21.  25. 


HISTORIA  PLACITORUM  CORONA.  749 

Forgery  of  handwriting  of  receiver  general  or  controller  general  of  customs  or  of  any 
person  duly  authorized  to  act  for  them.     6  Geo.  W.  c.  106.  §  27. 

Fortrery  of  newspaper  stamps  or  stamping  papers  with  forged  stamps  or  uttering  papers 
with  forged  stamps  &.C.     6  Geo.  IV.  c.  119.  §  6. 

Smuggling.     6  Geo.  IV.  c.  lOS.  ^  56. 

As  to  felonies  for  malicious  injuries  to  property,  see  7  »fe  8  Geo.  IV.  c  30.  repealing 
the  old  laws  and  consolidating  and  amending  the  laws  of  England  relative  to  malicious 
injuries.     See  29  Statutes  at  Large,  p.  90. 

The  act  for  consolidating  and  amending  the  statutes  of  England  relative  to  offences 
against  the  person  has  repealed  most  of  the  old  acts  and  substituted  its  own  provisions. 
See  29  vol.  Statutes  at  Large,  p.  370. 

An  act  to  remove  doubts  as  to  the  liability  of  lords  and  peers  of  parliament  to  punish- 
mcnt  in  certain  cases  of  felony.    4  &,  5  Vict.  c.  22.  33  Statutes  at  Large  781. 


NOTE  TO  PAGE  516^. 

"  Silent  leges  inter  arma" — the  laws  are  silent  in  the  midst  of  arms — said  the  great 
Roman  orator.  During  our  quarter  of  a  century  of  war,  the  laws  held  on  their  course; 
but  few  had  the  courage  to  question  the  wisdom  of  that  course,  and  still  fewer  the  leisure 
to  attend  to  any  suggestions  of  improvement.  The  daring  adventurer  who  then  mounted 
the  car  of  progress  had  to  guide  it,  self-balanced,  over  the  single  rib  of  steel  which  spanned 
the  wide  gulf  between  the  land  of  reality,  and  the  land  of  promise.  Romilly  was  the 
foremost  amongst  the  courageous  spirits  who  risked  something  for  the  amelioration  of 
the  lot  of  their  fellow  men.  In  1516  Sir  Thomas  More  wrote,  "  I  think  it  not  right 
nor  justice  that  the  loss  of  money  should  cause  the  loss  of  man's  life:  for  mine  opinion 
is,  tliat  all  the  goods  in  the  world  are  not  able  to  countervail  man's  life.  But  if  they 
would  thus  say  that  the  breaking  of  justice,  and  the  transgression  of  laws  is  recompensed 
with  this  punishment  and  not  the  loss  of  the  money,  then  why  may  not  this  extreme  and 
rigorous  justice  well  be  called  plain  injury?  For  so  cruel  governance,  so  straight  rules 
and  unmerciful  laws  be  not  allowable,  that  if  a  small  offence  be  committed  by  and  bye 
the  sword  should  be  drawn:  nor  so  stoical  ordinances  are  to  be  borne  withal,  as  to  count 
all  offences  of  such  equality  that  the  killing  of  a  man,  or  the  taking  of  his  money  from 
him  were  both  one  matter."  In  1816  Sir  Samuel  Romilly  carried  a  bill  through  the 
House  of  Commons  abolishing  capital  punishment  for  shoplifting  which  had  been  rejected 
by  that  house  three  years  before.  The  House  of  Lords  however  threw  out  this  bill;  and 
on  that  occasion  three  hundred  years  after  Sir  Thomas  More  had  proclaimed  the. opinion 
wljich  we  have  just  recited,  Lord  EUenborough  the  lord  chief  justice,  "lamented  that 
any  attempts  were  made  to  change  the  established  and  well-known  criminal  law  of  the 
country  which  had  been  found  so  well  to  answer  the  ends  of  justice." 

The  history  of  the  reform  of  our  criminal  law  presents  one  of  the  most  encouraging 
examples  of  the  unconquerable  success  of  the  assertion  of  a  right  principle  when  it  is 
perseveringly  advocated  and  never  suffered  to  sleep  and  when  above  all  the  reformation 
is  attempted  step  by  step,  and  the  prejudices  of  mankind  are  not  assailed  by  the  bolder 
course  which  appears  to  contemplate  destruction  and  not  repair.  The  name  of  reform 
in  the  criminal  laws  had  not  been  heard  in  the  Mouse  of  Commons  for  fifty-eight  years 
when  in  1808,  Romilly  carried  his  bill  for  the  abolition  of  the  punishment  of  death  for 
privately  stealing  from  the  person  to  the  value  of  five  shillings:  in  other  words  for  pick- 
ing pockets.  It  is  instructive  to  see  how  through  the  force  of  the  circumstances  around 
him  Romilly  approached  the  subject  of  this  reform  with  a  caution  which  now  looks 
almost  like  weakness.  His  object  was  originally  to  raise  the  value  according  to  which 
a  theft  was  rendered  capital.  In  January  1808  he  gave  up  the  intention  of  bringing 
forward  even  this  limited  measure — he  was  sure  the  judges  would  not  approve  of  it.  To 
another  distinguished  lawyer  belongs  the  merit  of  having  urged  Romilly  to  a  bolder 
policy.  His  friend  Scarlett,  he  says,  "had  advised  me  not  to  content  myself  with  merely 
raising  the  amount  of  the  value  of  property,  the  stealing  of  which  is  to  subject  the 
offender  to  capital  punishment,  but  to  attempt  at  once  to  repeal  all  the  statutes  which 
punish  with  death  mere  thefts  unaccompanied  by  any  act  of  violence  or  other  circum- 
stance  of  aggravation.  This  suggestion  was  very  agreeable  to  me.  But  as  it  appeared 
to  me  that  I  had  no  chance  of  being  able  to  carry  through  the  house  a  bill  which  was  to 
expunge  at  once  all  these  laws  from  the  statute-book,  I  determined  to  attempt  the  re- 
peal of  them  one  by  one;  and  to  begin  with  the  most  odious  of  them,  the  act  of  Queen 
Elizabeth  which  makes  it  a  capital  offence  to  steal  privately  from  the  person  of  another." 


750  HISTORIA  PLACITORUM  CORON.E. 

Upon  this  prudential  principle  Romilly  carried  his  first  reform  in  1808.  But  the  House 
of  Commons,  which  consented  to  pass  tlie  bill  forced  upon  him  the  omission  of  its  pream- 
blc: — "Whereas  the  extreme  severity  of  penal  laws  hath  not  been  found  effectual  for  tlie 
prevention  of  crimes:  but  on  the  contrary  by  increasing  the  difficulty  of  convicting 
offenders  in  some  cases  affords  them  impunity  and  in  most  cases  renders  their  punish- 
ment extremely  uncertain."  The  temper  with  wliicli  too  many  persons  of  rank  and 
influence  received  any  project  of  amelioration  at  the  betrinning  of  this  century  is  forcibly 
exhibited  in  an  anecdote  which  Romilly  has  preserved  for  our  edification  :  "If  any  person 
be  desirous  of  having  an  adequate  idea  of  the  mischievous  effects  which  have  been  pro- 
duced in  this  country  by  the  French  revolution  and  all  its  attendant  horrors,  he  should 
attempt  some  legislative  reform,  on  humane  and  liberal  principles.  He  will  then  find  not 
only  what  a  stupid  dread  of  innovation  but  what  a  savage  spiiit  it  has  infused  into  the 
minds  of  many  of  his  countrymen.  I  have  had  several  opportunities  of  observing  this. 
It  is  but  a  few  nights  ago  that  while  I  was  standing  at  the  bar  of  the  House  of  Commons 
a  young  man  the  brother  of  a  peer  whose  name  is  not  worth  setting  down,  came  up  to 
mc  and  breathing  in  my  face  the  nauseous  fumes  of  his  undigested  debauch,  stammered 
out  '  I  am  against  your  bill ;  I  am  for  hanging  all.'  I  was  confounded  :  and  endeavour, 
ing  to  find  out  some  excuse  for  him  I  observed  that  I  supposed  he  meant  that  the  cer- 
taintv  of  punishment  affording  the  only  prospect  of  suppressing  crimes  the  laws  what- 
ever they  arc  ought  to  be  executed.  '  No,  no,'  he  said,  '  it  is  not  that.  There  is  no  good 
done  by  mercy.     They  only  get  worse.     I  would  hang  them  all  up  at  once.'  " 

In  1810  Sir  Samuel  Romilly  brought  in  three  bills  to  repeal  the  acts  which  punished 
with  death  the  crimes  of  stealing  privately  in  a  shop  goods  of  the  value  of  five  shillings, 
and  of  stealing  to  the  amount  of  forty  shillings  in  a  dwelling-house  or  on  board  vessels 
in  navigable  rivers.  The  first  bill  passed  the  House  of  Commons  but  was  lost  in  the 
Lords.  The  other  two  were  rejected.  In  1811  the  rejected  bills  were  again  introduced 
with  a  fourth  bill  abolishing  the  capital  punishment  for  stealing  in  bleaching-grounds. 
Tiie  four  bills  were  carried  through  the  House  oFCommons;  but  only  that  on  the  subject 
of  bleacliing-grounds  was  sanctioned  by  the  Lords.  The  constant  argument  that  was 
employed  on  these  occasions  against  the  alteration  of  the  law  was  this,  that  of  late  years 
the  offences  which  they  undertook  to  repress  were  greatly  increased.  Justly  did  Rom- 
illy say,  "  A  better  reason  than  this  for  altering  the  law  could  hardly  be  given."  On 
the  24th  of  May,  1811,  when  three  of  the  bills  were  rejected  in  the  House  of  Lords,  Lord 
Ellenborough  declared,  ''They  went  to  alter  those  laws  which  a  century  had  proved  to 
be  necessary  and  which  were  now  to  be  overturned  by  speculation  and  modern  philoso- 
phy."  The  lord  chancellor  Eldon  on  the  same  occasion  stated  that  he  had  himself  early 
in  life  felt  a  disposition  to  examine  the  principles  on  which  our  criminal  code  was 
framed,  "  before  observation  and  experience  had  matured  his  judgment."  Since  how- 
ever he  had  learnt  to  listen  to  these  great  teachers  in  this  important  science  his  ideas  had 
greatly  changed,  and  he  saw  the  wisdom  of  the  principles  and  practice  by  which  our 
criminal  code  was  regulated.  In  1813  Sir  Samuel  Romilly's  bill  for  the  abolition  of 
capital  punishment  in  cases  of  shoplifting  was  carried  by  the  Commons  in  the  new  par- 
liament, but  it  was  again  rejected  in  the  House  of  Lords.  No  further  attempt  was  made 
towards  the  amelioration  of  this  branch  of  our  laws  till  the  year  1816;  which  attempt 
we  have  now  more  particularly  to  record. 

On  the  16th  of  February  Sir  Samuel  Romilly  obtained  leave  to  bring  in  a  bill  repeal- 
ing the  act  of  William  the  Third,  which  made  it  a  capital  offence  to  steal  privately  in  a 
shop  to  the  value  of  five  shillings.  He  described  this  act  as  the  most  severe  and  san. 
guinary  in  our  statute  book,  inconsistent  with  the  spirit  of  the  times  in  which  we  lived, 
and  repugnant  to  the  laws  of  nature  which  had  no  severer  punishment  to  inflict  upon  the 
most  atrocious  of  crimes.  As  recently  as  1785  no  less  than  ninety-seven  persons  were 
executed  in  London  for  this  oftence  alone ;  and  the  dreadful  spectacle  was  exhibited  of 
twenty  suffering  at  the  same  time.  The  capital  sentence  was  now  constantly  evaded  by 
juries  committing  a  pious  fraud  and  finding  the  property  of  less  value  than  was  required 
by  the  statute.  The  consequence  of  severe  laws  never  executed  was  that  crime  went 
on  to  increase,  and  the  crimes  of  juvenile  offenders  especially.  On  moving  the  third 
reading  of  the  bill  on  the  15th  of  March,  Sir  Samuel  Romilly  called  attention  to  the 
great  number  of  persons  of  very  tender  age  who  had  recently  been  sentenced  to  death  for 
pilfering  in  shops.  At  that  moment  there  was  a  child  in  Newgijte  not  ten  years  of  age 
under  sentence  of  death  for  this  offence;  and  the  Recorder  of  London  was  reported  to 
have  declared  that  it  was  intended  to  enforce  the  laws  strictly  in  future,  to  interpose 
some  check  if  possible  to  the  increase  of  youthful  depravity.  The  bill  passed  the  Com- 
mons, but  was  thrown  out  in  the  Lords  on  the  22d  of  May.     On  this  occasion  the  lord 


HISTORIA  PLACITORUM  CORON.E.  751 

chief  justice  agreed  with  the  lord  chancellor,  "that  the  effect  of  removing  the  penalty  of 
death  from  other  crimes  had  rendered  hi(n  still  more  adverse  to  any  new  experiment  of 
this  kind.  Since  the  removal  of  the  vague  terror  which  hung  over  the  crime  of  stealing 
from  the  person  the  number  of  offences  of  that  kind  had  alarmingly  increased.  Though 
the  punishment  of  death  was  seldom  inflicted  for  crimes  of  this  nature,  yet  the  influence 
which  the  possibility  of  capital  punishment  had  in  the  prevention  ot  crimes  could  scarcely 
be  estimated  except  by  those  who  had  the  experience  in  the  operation  of  the  criminal 
law  which  lie  had  the  misfortune  to  have.  When  it  was  considered  that  the  protection 
of  the  property  in  all  shops  depended  on  the  act  before  them,  and  that  even  now  thefts  of 
that  description  were  numerous,  the  bouse  would  not  he  trusted,  take  measures  to  increase 
them." 

When  we  look  back  on  the  debates  upon  the  criminal  law,  from  1809  to  1816,  and 
see  how  little  was  asked  by  Romiily,  and  refused  to  him,  compared  with  the  amount  yf 
reform  that  has  since  been  accomplished,  we  can  only  regard  the  arguments  for  the  sup- 
port of  the  ancient  system  of  capricious  terror  as  the  arguments  of  men  slowly  and  pain- 
fully emerging  from  barbarism. 

When,  in  the  time  of  Henry  VI.  more  persons  were  executed  in  England  in  one  year 
for  highway  robbery  than  the  whole  number  executed  in  France  in  seven  years;  when, 
in  the  reign  of  Henry  VIII.  seventy-two  tliousand  thieves  were  hanged,  being  at  the 
rate  of  two  thousand  a  year;  and  when,  in  the  reign  of  George  III.  as  we  have  seen, 
twenty  persons  Were  executed  on  the  same  morning  in  London,  for  privately  stealing — 
we  see  the  principle  of  unmitigated  ferocity,  the  savagery  which  applies  brute  force  as 
the  one  remedy  for  every  evil,  enshrined  on  the  judgment-seat.  Tlie  system  went  on 
till  society  was  heart-sick  at  its  atrocities,  and  then  rose  up  the  equivocating  system 
which  lord  chancellors,  and  lord  chief  justices,  and  doctors  in  moral  philosophy,  upheld 
as  the  perfection  of  human  wisdom — the  system  of  making  the  lightest  as  well  as  the 
most  enormous  offences ^pital,  that  the  law  might  stand  up  as  a  scare-crow — an  old, 
ragged,  ill-contrived,  an^ideous  mawkin — that  the  smallest  bird  that  habitually  pilfered 
the  fields  of  industry  despised  while  he  went  on  pilfering.  With  the  absolute  certainty 
of  experience  that  bloody  laws  rigorously  administered  did  not  diminish  crime,  the  legis- 
lators of  the  beginning  of  the  nineteenth  century  believe,  or  affected  to  believe,  that  the 
same  laws  scarcely  ever  carried  into  execution  would  operate  through  the  influence  of 
what  they  called  "  a  vague  terror."  As  if  any  terror,  as  a  preventive  of  crime  or  a  mo- 
tive to  good,  was  ever  vague.  The  system  was  entirely  kept  in  existence  by  the  incom- 
petence and  idleness  of  the  law-makers  and  the  law-administrators.  A  well-digested 
system  of  secondary  punishments  never  seemed  to  them  to  be  within  the  possibility  of 
legislatiori.  We  are  very  far  from  the  solution  of  this  great  problem  in  our  own  days; 
but  we  have  made  some  steps  towards  its  attainment. 

The  revolting  cruelty  and  the  disgusting  absurdity  of  our  criminal  laws,  thirty  years  ago, 
were  in  perfect  harmony  with  the  system  of  police,  which  had  then  arrived  at  its  perfec- 
tion of  imbecile  wickedness.  The  machinery  for  the  prevention  and  detection  of  crime 
was  exactly  accommodated  to  the  machinery  for  its  punishment.  On  the  3d  of  April, 
on  the  motion  of  Mr.  Bennet,  a  committee  of  the  House  of  Commons  was  appointed  to 
inquire  into  the  state  of  the  police  of  the  metropolis.  The  committee  was  resumed  in 
1817;  and  two  reports  were  presented,  which  were  amongst  the  first  causes  of  the 
awakening  of  the  public  mind  to  a  sense  of  the  frightful  evils  which  were  existing  in 
what  we  flattered  ourselves  to  be  the  most  civilized  city  in  the  world.  Twelve  years 
after,  a  committee  of  the  House  of  Commons  thus  described  the  police  system  of  1816 
and  1817 : — "  If  a  foreign  jurist  had  then  examined  the  condition  of  the  metropolis,  as 
respected  crime,  and  the  organization  of  its  police — and  if,  without  tracing  the  circum- 
stances  from  which  that  organization  arose,  he  had  inferred  design  from  the  ends  to 
which  it  appeared  to  conduce — he  might  have  brought  forward  plausible  reasons  for 
believing  that  it  was  craft.ily  framed  by  a  body  of  professional  depredators,  upon  a  calcu- 
lation of  the  best  means  of  obtaining  from  society^  with  security  to  themselves,  the 
greatest  quantity  of  plunder.  He  would  have  found  the  metropolis  divided  and  subdi- 
vided into  petty  jurisdictions,  each  independent  of  every  other,  each  having  sufficiently 
distinct  interests  to  engender  perpetual  jealousies  and  animosities,  and  being  sufficiently 
free  from  any  general  control  to  prevent  any  intercommunity  of  reformation  or  any  unity 
of  action."  Another  committee  of  the  House  of  Commons  reporting  in  1833,  says  of  the 
same  system,  "The  police  was  roused  into  earnest  action  only  as  some  flagrant  viola- 
tion of  the  public  peace,  or  some  deep  injury  to  private  individuals,  impelled  it  into  exer- 
tion;  and  security  to  persons  and  property  was  sought  to  be  obtained,  not  by  the  activity 
and  wholesome  vigour  of  a  preventive  police,  which  it  is  a  paramount  duty  of  the  State 


752  HISTORIA  PLACITORUM  CORONA. 

to  provide,  but  by  resorting  from  time  to  time,  as  an  occasional  increase  of  the  more  vio- 
lent breaciies  of  the  law  demanded  it,  to  the  highest  and  ultimate  penalties  of  that  law, 
in  the  hope  of  checking  tlie  more  desperate  oflenders."  The  same  report  says,  *'  Flash- 
houses  were  tiicn  declared  to  be  a  necessary  part  of  the  police  system,  where  known 
thieves,  with  tlie  full  knowledge  of  the  magistrates  and  public  officers,  usscinbled,  until 
the  State,  or  individuals  from  the  losses  they  had  sustained,  or  the  wrongs  they  had  suf- 
fered, bid  high  enough  for  their  detection.  Flash-houses,  known  in  the  scientific  phrase- 
ology of  the  police  as  "  flash-cribs"  "  shades"  and  "  infcrnals"  were  filthy  dens,  where 
thieves  and  abandoned  females  were  always  t.o  be  found,  riotous  or  drowsy,  surrounded  by 
cliiidren  of  all  ages,  qualifying  for  their  degrees  in  the  college  of  crime."  "  There,"  says 
a  Middlesex  magistrate,  examined  before  the  committee  of  1816,  "  they  (the  children) 
see  thieves  and  thief-takcrs  sitting  and  drinking  together  on  terms  of  good-fellowship; 
all  they  see  and  hear  is  calculated  to  make  them  believe  they  may  rob  without  fear  of 
punishment,  for  in  their  thoughtless  course  they  do  not  reflect  that  the  forbearance  of  the 
officers  will  continue  no  longer  than  until  they  commit  a  forty-pound  crime,  when  they 
will  be  sacrificed."  A  forty-pound  crime !  the  phraseology  is  as  obsolete  as  if  it  were 
written  in  the  pedlar's  French  of  the  rogues  of  the  sixteenth  century.  A  forty-pound 
crime  was  a  crime  for  whose  detection  the  State  adjudged  a  reward,  to  be  paid  on  con- 
viction, of  forty-pounds ;  and,  as  a  necessary  consequence,  the  whole  race  of  thieves  were 
fostered  into  a  steady  advance  from  small  offi^nces  to  great,  till  they  gratefully  ventured 
upon  some  deed  of  more  than  common  atrocity,  which  should  bestow  the  blood-money 
upon  the  officers  of  the  law  who  had  so  long  petted  and  protected  them.  The  system 
received  a  fatal  blow  in  1816,  in  the  detection  of  three  officers  of  the  police,  who  had 
actually  conspired  to  induce  five  men  to  commit  a  burglary  for  the  purpose  of  obtaining 
the  rewards  upon  their  conviction.  The  highwaymen  who  infested  the  suburbs  of  the 
metropolis  had  been  eradicated — they  belonged  to  another  age.  Offi;nccs  against  the  per- 
son were  rarely  connected  with  any  olFences  against  propertji*  But  the  uncertainty  of 
punishment,  the  authorized  toleration  of  small  offenders,  ana  the  organized  system  of 
negotiation  for  the  return  of  stolen  property,  had  filled  the  metropolis  with  legions  of  expe- 
rienced depredators.  The  public  exhibitions  of  the  most  profligate  indecency  and  bru- 
tality can  scarcely  be  believed  by  those  who  have  grown  up  in  a  different  state  of  society. 
When  Defoe  described  his  Colonel  Jack,  in  the  days  of  his  boyish  initiation  into  vice, 
sleeping  with  other  children  amidst  the  kilns  and  glass-houses  of  the  London  fields,  we 
read  of  a  state  of  things  that  has  long  passed  away  ;  but,  as  recently  as  1816,  in  Convent 
Garden  Market,  and  other  places  affording  a  partial  shelter,  hundreds  of  men  and  women, 
boys  and  girls,  assembled  together,  and  continued  during  the  night,  in  a  state  of  shame- 
less profligacy,  which  is  described  as  presenting  a  scene  of  vice  and  tumult  more  atrocious 
than  any  thing  exhibited  even  by  the  lazzaroni  of  Naples. — Knight's  Hist,  of  Eng,  B,  I. 
c.  7.  Land.  1846-7. 


END  OF  THE  FIRST  VOLUME. 


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